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ELRCDismissedPetition; Notice of Motion dated 26th July 2021 (Record of Appeal Civil Appeal No. 364 of 2021, Nairobi referenced)· [2021] KEELRC 587 (KLR)

Magare Gikenyi J Benjamin v Independent Electoral Committee (IEC) &18; others; Kahura Mundia, & 17 others (Interested parties) [2021] KEELRC 587 (KLR)

Employment and Labour Relations Court
27 September 2021
MMM. Mbaru
599 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment and Labour Relations Court refused to halt taxation of legal costs owed to KMPDU because the process was already underway and the application missed the legal test for a stay.

What this practically means

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Executive summary

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The petitioner, a member of the 1st respondent trade union (KMPDU), brought a notice of motion dated 26th July 2021 seeking suspension or stay of the execution of taxation of the respondent's costs, pending hearing of Court of Appeal Application No. 364 of 2021. The application arose from a ruling delivered on 28th April 2021 in the underlying petition, in which costs were awarded to the respondent; the respondent's bill of costs was for Ksh. 707,125. The petitioner argued that if stay was not granted, attachment could proceed before his appeal was heard. The respondent filed grounds of opposition contending that the application was an abuse of process, made too late since taxation had progressed, and that no appeal had been filed or served. At the hearing on 21st September 2021 only the respondent attended and sought dismissal. The court noted that taxation had commenced before the Deputy Registrar on 6th July 2021, at which point the petitioner had only filed a Notice of Appeal, and the Deputy Registrar had directed written submissions. The court held the stay sought was overtaken by events, that a stay of taxation would not in any event arrest execution of the decree dated 9th July 2021, and that the application could not be fitted within Order 42 Rule 6 of the Civil Procedure Act. The application was dismissed with costs.

Key legal issues

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01

Whether stay of taxation could be granted where taxation had already commenced

Holding

The stay was refused as the taxation process had already taken off and the application was overtaken by events.

Reasoning

The Deputy Registrar had on 6th July 2021 commenced taxation and directed parties to file written submissions on the bill of costs. By the time the applicant filed the application on 26th July 2021, the process sought to be stayed was underway. Stopping it would not arrest any other matter relating to the ruling of 28th April 2021 and the decree of 9th July 2021.

p. 3
02

Whether the application satisfied Order 42 Rule 6 of the Civil Procedure Act

Holding

The application could not be fitted within the dictates of Order 42 Rule 6 even if the court were inclined to grant stay pending appeal.

Reasoning

The court observed that even where stay of execution pending appeal could issue, the applicant's case did not meet the statutory criteria. The record of appeal was not evidenced - only a Notice of Appeal was shown, with no record of when the appeal was filed, its nature, or the registry. The facts presented therefore did not invite the court's discretion.

p. 3

Legal principles established

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  • The discretion to grant stay must be exercised on facts and reasons founded on law or crystallized principles of law
  • A stay of taxation alone does not arrest execution of the decree

Court orders

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  1. 1.Application dated 26th July, 2021 dismissed with costs
On appeal from
null
null
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Act and the Rules thereto (stay of execution pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Magare Gikenyi J Benjamin v Independent Electoral Committee (IEC) &18; others; Kahura Mundia, & 17 others (Interested parties) [2021] KEELRC 587 (KLR)", Case Analysis (2021). Petition; Notice of Motion dated 26th July 2021 (Record of Appeal Civil Appeal No. 364 of 2021, Nairobi referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/587/eng@2021-09-27

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