Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC Misc. Civil Application (reference to ruling of 24th April 2025 in ELC Misc. Civil Application Case No. E004 of 2024)· [2025] KEELC 5817 (KLR)

Kamundi & another (Practising as Kinyua Muyaa & Co Advocates) v South Coast Holdings Limited (Miscellaneous Civil Application E004 of 2024) [2025] KEELC 5817 (KLR)

Environment and Land Court
3 July 2025
8,153 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

#

A Kenyan court paused a Kshs. 1.17 million payment ruling, but only because the company agreed to deposit Kshs. 3.5 million security within 45 days.

What this practically means

#

Executive summary

#
South Coast Holdings Limited, the Client/Applicant, moved the Environment and Land Court at Kwale by Notice of Motion dated 14th May 2025 under Order 42 Rule 6 of the Civil Procedure Rules seeking stay of execution of the court's ruling of 24th April 2025 in ELC Misc. Civil Application No. E004 of 2024, a stay of further proceedings including re-taxation of the Advocates/Client Bill of Costs, and a refund of the taxed sum of Kshs. 1,173,387.00 paid on 9th September 2024. The application was opposed by the 1st & 2nd Advocates/Respondents, who argued it was premature since no execution could issue before re-taxation, that the court lacked jurisdiction to stay taxation, and that the Applicant had neither demonstrated substantial loss nor offered security. The court framed three issues: the parameters for stay, merit of the application, and costs. Applying the conjunctive conditions in Order 42 Rule 6(2), it found substantial loss proved and no undue delay, but noted the Applicant had offered no security. Exercising discretion, the court allowed the application conditionally: stay of execution of the 24th April 2025 order pending the intended appeal to the Court of Appeal, upon deposit of Kshs. 3,500,000/- into a joint escrow account of the parties' law firms within 45 days, failing which the application would stand dismissed automatically. The referral to the Taxing Master at Mombasa set for 9th July 2025 was deferred to a mention on 13th October 2025. No refund was ordered, and the court made no order as to costs.

Key legal issues

#
01

Substantial loss

Holding

The Applicant proved it would suffer substantial loss if stay were not granted

Reasoning

Applying Kenya Shell Ltd and related authorities, the court found the risk that further sums arising from re-taxation might be executed against the Applicant, who had already fully paid the taxed amount, would render the intended appeal nugatory.

p. 13
02

Undue delay

Holding

The application was filed timeously

Reasoning

The ruling was delivered on 24th April 2025, the application filed 14th May 2025 and the Notice of Appeal on 29th April 2025; the court found the application made expeditiously.

p. 14
03

Security for due performance

Holding

Stay granted only on condition of a deposit of Kshs. 3,500,000/- into a joint escrow account

Reasoning

Although the Applicant offered no security, the court, invoking its discretion and equity, fixed a fair sum lower than half the contested amount to be deposited in a joint escrow account pending appeal.

p. 16

Legal principles established

#
  • The three conditions for granting stay of execution pending appeal under Order 42 Rule 6(2) - substantial loss, no undue delay, and security - are conjunctive and must all be met
  • Substantial loss is a qualitative concept referring to loss of real worth or value that would render an appeal nugatory
  • Security for due performance of the decree is mandatory and the court is not bound by the type of security offered

Court orders

#
  1. 1.The Notice of Motion application dated 14th May, 2025 be and is hereby found to have merit and hence allowed subject to fulfilment of the pre-conditions stated
  2. 2.An order of stay of execution of the Court's order arising from the Ruling delivered on 24th April, 2025 pending the hearing and determination of the intended appeal in the Court of Appeal
  3. 3.The Applicant to deposit Kenya Shillings Three Million Five Hundred Thousand (Kshs. 3,500,000/-) as security in a joint escrow bank account in the names of the Law firms of Messrs. Anne Wamithi & Company Advocates and Messrs. Kinyua Muyaa & Company Advocates within 45 days from delivery of the Ruling
  4. 4.The direction that the matter be referred to the Taxing Master at Mombasa on 9th July, 2025 be deferred awaiting mention on 13th October, 2025
  5. 5.Failure to comply with the security condition, the application shall automatically stand dismissed and execution shall ensue procedurally as provided by law
  6. 6.There shall be no orders as to costs
Jurisdiction invoked
Sections 1A, 3A & 63(e) of the Civil Procedure Act, Cap. 21 and Order 42 Rule 6 and Order 51 Rules (1), (3) of the Civil Procedure Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kamundi & another (Practising as Kinyua Muyaa & Co Advocates) v South Coast Holdings Limited (Miscellaneous Civil Application E004 of 2024) [2025] KEELC 5817 (KLR)", Case Analysis (2025). ELC Misc. Civil Application (reference to ruling of 24th April 2025 in ELC Misc. Civil Application Case No. E004 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5817/eng@2025-07-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.