Automated Summary
Key Facts
The plaintiff, Simion Ogada Andiwo, applied for a stay of execution of the court's December 14, 2021 ruling that dismissed his case with costs against multiple defendants. The court dismissed the stay application, finding the orders were negative (i.e., dismissals without enforceable obligations) and no bill of costs had been filed, taxed, or certified, leaving nothing to stay. Defendants argued the application was premature and an abuse of process, citing legal precedents that negative orders are generally not subject to execution unless costs are involved. The court ruled the applicant failed to demonstrate substantial loss or comply with procedural requirements for a stay under Order 42 Rule 6 of the Civil Procedure Rules.
Issues
The central issue for determination was whether the court should grant a stay of execution of the orders made on 14th February 2021, specifically dismissing the plaintiff's suit against multiple defendants with costs. The court evaluated if sufficient cause existed under Order 42 Rule 6 of the Civil Procedure Rules to justify the stay, considering factors like undue delay, potential substantial loss, and security for costs.
Holdings
- The court dismissed the applicant's request for a stay of execution pending appeal, finding that the application lacked merit. The applicant failed to demonstrate sufficient grounds for the stay, including no evidence of substantial loss and no security provided. The court ruled that the order dismissing the plaintiff's suit against several defendants was a negative order incapable of execution except for costs, which had not been filed or taxed.
- The court held that the applicant's failure to provide security for costs, as required by Order 42 Rule 6 of the Civil Procedure Rules, further invalidated the stay request. The applicant's appeal alone does not automatically suspend the enforcement of the court's orders.
- The court determined that the order dismissing the plaintiff's suit against the 1st, 2nd, 3rd, 5th, 6th, 7th, 8th, 9th, 10th, 11th, and 15th defendants was a negative order, which cannot be executed unless a bill of costs is filed, taxed, and certified. Since no such bill was submitted, there was no enforceable order to stay.
Remedies
The application for stay of execution pending appeal was dismissed with costs to the respondents, as the court found no sufficient cause to grant the stay and determined the application lacked merit.
Legal Principles
- The court addressed the competency of legal documents under the Advocates Act, requiring Grounds of Opposition to disclose the author's name and signature. It found the respondents' Grounds of Opposition compliant as they identified the drafting firm (Gikera & Vadgama Advocates) and provided contact details, satisfying statutory requirements.
- The court applied Order 42 Rule 6 of the Civil Procedure Rules, requiring an applicant for stay of execution pending appeal to demonstrate (1) substantial loss if stay is denied, (2) no unreasonable delay in filing, and (3) provision of security. It emphasized that negative court orders (e.g., dismissal with costs) are generally incapable of execution unless a bill of costs has been filed, taxed, and certified. The applicant failed to meet these conditions, leading to dismissal of the stay application.
Precedent Name
- Travel Shoppe Ltd vs Indigo Garments EPZ Ltd & 2 others
- Raymond M. Omboga v Austine Pyan Maranga
- Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya)
- Kanwal Sarjit Singh Dhiman v Keshavji Juvraj Shah
- Loice Khachendi Onyango v Alex Inyangu & another
- Butt v Rent Restriction Tribunal
- Jennifer Akinyi Osodo v Boniface Okumu Osodo & 3 others
- Western College of Arts and Applied Sciences v Oranga & Others
- Republic v National Social Security Fund Exparte Kapi Limited
Cited Statute
- Evidence Act
- Civil Procedure Rules 2010
- Advocates Act
Judge Name
Mumbua T. Matheka
Passage Text
- The relief is discretionary but the discretion must be exercised judiciously and upon defined principles of law; not capriciously or whimsically. Therefore, stay of execution should only be granted where sufficient cause has been shown by the Applicant. In determining whether sufficient cause has been shown, the Court should be guided by the three pre-requisites provided under Order 42 Rule 6 of the Civil Procedure Rules. Firstly, the Application must be brought without undue delay; secondly, the court will satisfy itself that substantial loss may result to the Applicants unless stay of execution is granted; and thirdly 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 Applicant....
- But what is there to be executed under the judgment, the subject of the intended appeal? The High Court has merely dismissed the suit with costs. Any execution can only be in respect of costs. In Wilson v Church the High Court had ordered the trustees of a church to make a payment out of that fund. In the instant case the High Court has not ordered any parties to do anything, or to refrain from doing anything, or to pay any sum. There is nothing arising out of the High Court Judgment for this Court, in and application for stay, it is so ordered.
- 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...