BRIEF FACTS
The Plaintiff/Applicant filed the instant application dated 26th November, 2024 seeking the following orders:
1. Spent.
2. Spent.
3. THAT this Honourable Court be pleased to issue a stay of execution of judgment delivered on 26th July, 2024 and the consequent order thereto specifically execution for costs and all consequential orders pending the hearing and determination of the appeal.
4. THAT the costs of this application be in the cause.
The Application was based on grounds set out and supported by the Affidavit of SHAMIRA CHEPKEMEI CHELANGA the director of the Plaintiff/Applicant herein sworn on 26th November, 2024.
She stated that the court in its ruling on 26th July, 2024 allowed the 1st and 2nd Defendant’s Preliminary Objection dated 25th March, 2024 and awarded costs to the Respondent. She further stated that being aggrieved with the ruling, she lodged an appeal. That the 2nd Respondent moved the court vide a Bill of Costs dated 16th September, 2024 that sought for Kshs. 7,243,300 as costs. She stated that the 2nd Respondent may proceed to tax and execute the same rendering the appeal nugatory. She further stated that the appeal raised substantial issues with chances of success. She added that there was a negative ruling that dismissed the Applicants claim thus they could not stay a negative order. She stated that since the 2nd Respondent has not filed a Bill of Costs, there is need to seek stay orders. She urged the court to allow the application as prayed.
Response
The 1st Defendant/Respondent filed his replying affidavit sworn on 17th January, 2025 where he averred that the application was premature since none of the Defendants have obtained a decree for costs to be executed. He further averred that with the absence of a decree, no execution would take place. He averred that the Defendants Bill of Costs was awaiting directions. He also averred that taxation was a process undertaken by the taxing master regardless of there being an appeal or not. He averred that it would be desirable for the party and party costs to be determined for the court to use while considering an application for stay of execution and what conditions it would impose. He averred that there was no judgment to be stayed since the ruling dismissed the Applicant’s suit.
The 2nd Defendant/Respondent filed his Grounds of Opposition on the following grounds:
1. THAT the application herein is premature, incompetent and an abuse of the process of Court as the decree herein amounts to a negative order incapable of being executed and/or in any event a Certificate of Costs is yet to be issued.
2. THAT the application does not satisfy or meet the criteria and requirements as set out under Order 42 Rule 6 of the Civil Procedure Rules.
3. THAT this Honourable Court lacks jurisdiction to deal with issues of costs unless there is a proper and competent reference filed.
4. THAT the Applicant has not provided any credible evidence of any substantial loss they shall suffer if the taxing Master proceeds to assess or tax costs and therefore the purported loss is merely speculative and hollow.
5. THAT the application is devoid of any merit and should be dismissed with costs.
Submissions
Counsel for the 1st Defendant/Respondent filed his submissions dated 12th February, 2025 where he gave a summary of the case and identified two issues for determination. The first issue on whether the application is competent, while submitting in the negative, he argues that the court cannot grant stay of execution since the court only delivered a ruling allowing the preliminary objections raised by the Defendants. He submits that there is no evidence of an appeal. He argues that the notice of appeal is merely an expression of intention to appeal. He submits that the court cannot grant the orders sought since there is neither a judgment nor an appeal.
The second issue on whether the application has merit, counsel also submits in the negative and argues that the Applicant seeks to stop the taxing master from determining costs to a successful party in a matter already determined. He submits that there is no certificate of costs in place and thus that the application is premature and incompetent. He urges the court to dismiss the application and allow taxation of the Bill of Costs as filed by the Defendants.
Analysis and Determination
This court has carefully considered the application and the main issue for determination is whether the order for stay of execution pending appeal should issue.
In this case, it is not in contention that ruling for the 1st Defendant/Respondent’ preliminary objection dated 25th March, 2024 was delivered on 26th July, 2024. In the said ruling, the court allowed the preliminary objection and the suit was struck out with costs. The Plaintiff/Applicant filed a Notice of Appeal dated 29th July, 2024 against the said ruling. The 2nd Defendant/Respondent filed a party and party bill of costs dated 11th September, 2024 which is pending hearing and determination before the Deputy Registrar.
In the case of Gitundu V Wathuku [2022] KECA 959 (KLR), the court held as follows:
“Additionally, even if we had the requisite jurisdiction, this Court has said time without number that stay orders cannot issue in respect of negative orders, where the court has not ordered any of the parties to perform any task.”
Further, in the case of Raymond M. Omboga V Austine Pyan Maranga Kisii HCCA No 15 of 2010 the court held that:
“The order dismissing the application is in the nature of a negative order and is incapable of execution save, perhaps, for costs and such order is incapable of stay. Where there is no positive order made in favour of the respondent which is capable of execution, there can be no stay of execution of such an order...The applicant seeks to appeal against the order dismissing his application. This is not an order capable of being stayed because there is nothing that the applicant has lost. The refusal simply means that the applicant stays in the situation he was in before coming to court…”
It is not in dispute that the Plaintiff/Applicant is seeking to stay a dismissal of a preliminary objection. It is this court’s view that the said order in its nature is a negative order incapable of execution.
In view of the above, this court cannot stay an action unless there exists a positive order which if executed will result in a loss to the other party.
The upshot of the above is that this court cannot stay a negative order of dismissal. The application is therefore without merit and is dismissed with costs.
It is so ordered.
The Plaintiff/Applicant filed the instant application dated 26th November, 2024 seeking the following orders:
1. Spent.
2. Spent.
3. THAT this Honourable Court be pleased to issue a stay of execution of judgment delivered on 26th July, 2024 and the consequent order thereto specifically execution for costs and all consequential orders pending the hearing and determination of the appeal.
4. THAT the costs of this application be in the cause.
The Application was based on grounds set out and supported by the Affidavit of SHAMIRA CHEPKEMEI CHELANGA the director of the Plaintiff/Applicant herein sworn on 26th November, 2024.
She stated that the court in its ruling on 26th July, 2024 allowed the 1st and 2nd Defendant’s Preliminary Objection dated 25th March, 2024 and awarded costs to the Respondent. She further stated that being aggrieved with the ruling, she lodged an appeal. That the 2nd Respondent moved the court vide a Bill of Costs dated 16th September, 2024 that sought for Kshs. 7,243,300 as costs. She stated that the 2nd Respondent may proceed to tax and execute the same rendering the appeal nugatory. She further stated that the appeal raised substantial issues with chances of success. She added that there was a negative ruling that dismissed the Applicants claim thus they could not stay a negative order. She stated that since the 2nd Respondent has not filed a Bill of Costs, there is need to seek stay orders. She urged the court to allow the application as prayed.
Response
The 1st Defendant/Respondent filed his replying affidavit sworn on 17th January, 2025 where he averred that the application was premature since none of the Defendants have obtained a decree for costs to be executed. He further averred that with the absence of a decree, no execution would take place. He averred that the Defendants Bill of Costs was awaiting directions. He also averred that taxation was a process undertaken by the taxing master regardless of there being an appeal or not. He averred that it would be desirable for the party and party costs to be determined for the court to use while considering an application for stay of execution and what conditions it would impose. He averred that there was no judgment to be stayed since the ruling dismissed the Applicant’s suit.
The 2nd Defendant/Respondent filed his Grounds of Opposition on the following grounds:
1. THAT the application herein is premature, incompetent and an abuse of the process of Court as the decree herein amounts to a negative order incapable of being executed and/or in any event a Certificate of Costs is yet to be issued.
2. THAT the application does not satisfy or meet the criteria and requirements as set out under Order 42 Rule 6 of the Civil Procedure Rules.
3. THAT this Honourable Court lacks jurisdiction to deal with issues of costs unless there is a proper and competent reference filed.
4. THAT the Applicant has not provided any credible evidence of any substantial loss they shall suffer if the taxing Master proceeds to assess or tax costs and therefore the purported loss is merely speculative and hollow.
5. THAT the application is devoid of any merit and should be dismissed with costs.
Submissions
Counsel for the 1st Defendant/Respondent filed his submissions dated 12th February, 2025 where he gave a summary of the case and identified two issues for determination. The first issue on whether the application is competent, while submitting in the negative, he argues that the court cannot grant stay of execution since the court only delivered a ruling allowing the preliminary objections raised by the Defendants. He submits that there is no evidence of an appeal. He argues that the notice of appeal is merely an expression of intention to appeal. He submits that the court cannot grant the orders sought since there is neither a judgment nor an appeal.
The second issue on whether the application has merit, counsel also submits in the negative and argues that the Applicant seeks to stop the taxing master from determining costs to a successful party in a matter already determined. He submits that there is no certificate of costs in place and thus that the application is premature and incompetent. He urges the court to dismiss the application and allow taxation of the Bill of Costs as filed by the Defendants.
Analysis and Determination
This court has carefully considered the application and the main issue for determination is whether the order for stay of execution pending appeal should issue.
In this case, it is not in contention that ruling for the 1st Defendant/Respondent’ preliminary objection dated 25th March, 2024 was delivered on 26th July, 2024. In the said ruling, the court allowed the preliminary objection and the suit was struck out with costs. The Plaintiff/Applicant filed a Notice of Appeal dated 29th July, 2024 against the said ruling. The 2nd Defendant/Respondent filed a party and party bill of costs dated 11th September, 2024 which is pending hearing and determination before the Deputy Registrar.
In the case of Gitundu V Wathuku [2022] KECA 959 (KLR), the court held as follows:
“Additionally, even if we had the requisite jurisdiction, this Court has said time without number that stay orders cannot issue in respect of negative orders, where the court has not ordered any of the parties to perform any task.”
Further, in the case of Raymond M. Omboga V Austine Pyan Maranga Kisii HCCA No 15 of 2010 the court held that:
“The order dismissing the application is in the nature of a negative order and is incapable of execution save, perhaps, for costs and such order is incapable of stay. Where there is no positive order made in favour of the respondent which is capable of execution, there can be no stay of execution of such an order...The applicant seeks to appeal against the order dismissing his application. This is not an order capable of being stayed because there is nothing that the applicant has lost. The refusal simply means that the applicant stays in the situation he was in before coming to court…”
It is not in dispute that the Plaintiff/Applicant is seeking to stay a dismissal of a preliminary objection. It is this court’s view that the said order in its nature is a negative order incapable of execution.
In view of the above, this court cannot stay an action unless there exists a positive order which if executed will result in a loss to the other party.
The upshot of the above is that this court cannot stay a negative order of dismissal. The application is therefore without merit and is dismissed with costs.
It is so ordered.