Brief background;
1. The Applicant herein filed a preliminary objection in an attempt to stop the Taxation of the Advocate-client Bill of costs, which objection was heard and dismissed through the ruling delivered on 20th June 202.Be dissatisfied, has moved this court to set aside this ruling.
2. The applicant moved the court through an Application dated 3rd July 2023 seeking orders:
1) THAT this Honourable Court be pleased to grant stay orders halting any proceedings consequential to the ruling of this Honourable Court delivered on 20th June 2023 pending hearing and determination of the respondent's miscellaneous (reference) application dated 27th June 2023 and filed in this court on 29th of June 2023 which application has been scheduled for mention on 26th July 2023 before the duty judge Hon. Gichohi J. for directions. The said order is hereby attached.
2) THAT costs of this application to be in the cause.
3. It is supported by the affidavit of Kennedy Ochieng Oduor.
Applicant’s case;
4. It is his case that the ruling dated 20th June 2023 did not take into consideration the issues that he raised in his preliminary objection dated 9th December 2022,his written submissions dated 17th February 2023 and his replying affidavit dated 24th May 2023.
5. It is his case that the Taxing Officer intentionally constructed her own Preliminary Objection and responded to it and abandoned the Preliminary Objection that was raised by the respondent herein on 9th December 2022 against the applicant bill of costs dated 25th October 2022.
6. He filed a miscellaneous (reference) application dated 27th June 2023 seeking audience with the duty judge so as to have the issues raised resolved before taxation can proceed.
7. He would like the issues to be heard and determined by the High Court before taxation can proceed.
8. He believes that he has met the threshold for stay of proceedings.
9. It is his case that the miscellaneous (reference) dated 27th June 2023 will be rendered nugatory if the said stay order is not granted since the said application would be seeking to stop taxation proceedings on arguable points of law.
Respondent’s Case;
10. According to the respondent, the Applicant has not satisfied any requirements of stay as laid out under order 42 Rule 6 of the Civil Procedure Rules regarding stay of execution since the intended Appeal is frivolous and stands high chances of being dismissed.
11. The Respondent argues that the Appellant should deposit security for costs as a condition for stay as shall be assessed by this Honorable court.
Analysis and determination;
12. The power of the court to grant stay of execution of a decree pending appeal under Order 42 Rule 6 is discretionary. However, that discretion should be exercised judiciously.
13. The prayer for stay of execution pending appeal is brought under Order 42 Rule 6 of the Civil Procedure Rules which provides that:
“(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2) No order for stay of execution shall be made under subrule (1) unless—
(a) the court is satisfied that substantial loss may result to the Applicants unless the order is made, and that the application has been made without unreasonable delay; and
(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicants”.
14. The Advocates bill has not been taxed. References are only filed after a bill has been taxed and a party is aggrieved.
15. The applicant’s reference dated 27th June 2023 and filed in on 29th of June 2023 is not an appeal. A reference cannot inform the application for a stay pending appeal.
16. The provision of Order 42 of the Civil Procedures is not available to the Applicant since there is no pending Appeal.
Disposition;
17. The upshot of the foregoing is that the application does not meet the principles for granting stay of proceedings
Order;
The application dated 3rd July 2023 is dismissed with costs.
1. The Applicant herein filed a preliminary objection in an attempt to stop the Taxation of the Advocate-client Bill of costs, which objection was heard and dismissed through the ruling delivered on 20th June 202.Be dissatisfied, has moved this court to set aside this ruling.
2. The applicant moved the court through an Application dated 3rd July 2023 seeking orders:
1) THAT this Honourable Court be pleased to grant stay orders halting any proceedings consequential to the ruling of this Honourable Court delivered on 20th June 2023 pending hearing and determination of the respondent's miscellaneous (reference) application dated 27th June 2023 and filed in this court on 29th of June 2023 which application has been scheduled for mention on 26th July 2023 before the duty judge Hon. Gichohi J. for directions. The said order is hereby attached.
2) THAT costs of this application to be in the cause.
3. It is supported by the affidavit of Kennedy Ochieng Oduor.
Applicant’s case;
4. It is his case that the ruling dated 20th June 2023 did not take into consideration the issues that he raised in his preliminary objection dated 9th December 2022,his written submissions dated 17th February 2023 and his replying affidavit dated 24th May 2023.
5. It is his case that the Taxing Officer intentionally constructed her own Preliminary Objection and responded to it and abandoned the Preliminary Objection that was raised by the respondent herein on 9th December 2022 against the applicant bill of costs dated 25th October 2022.
6. He filed a miscellaneous (reference) application dated 27th June 2023 seeking audience with the duty judge so as to have the issues raised resolved before taxation can proceed.
7. He would like the issues to be heard and determined by the High Court before taxation can proceed.
8. He believes that he has met the threshold for stay of proceedings.
9. It is his case that the miscellaneous (reference) dated 27th June 2023 will be rendered nugatory if the said stay order is not granted since the said application would be seeking to stop taxation proceedings on arguable points of law.
Respondent’s Case;
10. According to the respondent, the Applicant has not satisfied any requirements of stay as laid out under order 42 Rule 6 of the Civil Procedure Rules regarding stay of execution since the intended Appeal is frivolous and stands high chances of being dismissed.
11. The Respondent argues that the Appellant should deposit security for costs as a condition for stay as shall be assessed by this Honorable court.
Analysis and determination;
12. The power of the court to grant stay of execution of a decree pending appeal under Order 42 Rule 6 is discretionary. However, that discretion should be exercised judiciously.
13. The prayer for stay of execution pending appeal is brought under Order 42 Rule 6 of the Civil Procedure Rules which provides that:
“(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2) No order for stay of execution shall be made under subrule (1) unless—
(a) the court is satisfied that substantial loss may result to the Applicants unless the order is made, and that the application has been made without unreasonable delay; and
(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicants”.
14. The Advocates bill has not been taxed. References are only filed after a bill has been taxed and a party is aggrieved.
15. The applicant’s reference dated 27th June 2023 and filed in on 29th of June 2023 is not an appeal. A reference cannot inform the application for a stay pending appeal.
16. The provision of Order 42 of the Civil Procedures is not available to the Applicant since there is no pending Appeal.
Disposition;
17. The upshot of the foregoing is that the application does not meet the principles for granting stay of proceedings
Order;
The application dated 3rd July 2023 is dismissed with costs.