Odhiambo & 2 others v Okoth (Personal Representative of the estate of Timothy Masingo Ojewu (Deceased) ) & another (Environment & Land Case 23 of 2020) [2022] KEELC 3637 (KLR) (25 July 2022) (Ruling)
Neutral citation:
[2022] KEELC 3637 (KLR)
Republic of Kenya
Environment & Land Case 23 of 2020
AA Omollo, J
July 25, 2022
Between
Joseph Oduori Odhiambo
1st Applicant
Maurice Akula Opanyi
2nd Applicant
Simon Owino Opanyi
3rd Applicant
and
Flora Auma Okoth (Personal Representative of the estate of Timothy Masingo Ojewu (Deceased) )
1st Respondent
Hosea Ojuo Masingo
2nd Respondent
Ruling
1.The applicant brought an application dated March 29, 2022 under section 3A of the Civil Procedure Act seeking for the following orders;i.The execution of the judgment given herein on November 11, 2021 in relation to costs be stayed;a.until Kisumu Court of Appeal, Civil Appeal No 2 of 2022 thereof is heard and decided.ii.Costs of this motion be in the cause.
2.The application was supported by grounds on the face of it and the affidavit of Maurice Akula Opanyi inter alia;
3.The respondents filed grounds of opposition dated April 8, 2022 opposing the application. they listed out the following grounds;i.The application is incompetent and fatally defective for want of compliance with order 9 rule 9 of the Civil Procedure Rules.ii.The application is frivolous, vexatious and an abuse of the court process as payment of costs cannot be subject to an order of stay pending appeal while a dismissal order cannot be stayed.iii.The application is misconceived.
4.The parties agreed to dispense with the hearing of the application by way of written submissions which the court has looked at and considered. I frame the following questions for determination of the application;a.Whether this court can stay the execution for costsb.Whether the application offends order 9 rule 9 of the Civil Procedure Rules.
5.On the first issue, the applicants contend that a stay of execution should be issued because if they are the successful party in their appeal, the respondents might be unable to pay back the said costs. That respondents have not brought any evidence showing that they have any other property other than the one in dispute or are in gainful employment to refund the money back in case their appeal succeeds. The applicants added that they are likely to be condemned to civil jail for failure to pay the advocate’s money since they have no means of income.
6.The legal provision governing stay pending appeal is order 42 rule 6(2) of the Civil Procedure Rules which provides that:
7.In Vishram Ravji Halai & another v Thornton & Turpin [1963] LTD [1990] KLR 365, the court said:-
8.In opposing the application, the respondents relied on the decision of the Court of Appeal in Nairobi Civil Application No 298 of 1996 Francis Kabaa v Nancy Wambui and Anr, where it was held that a stay of execution cannot be granted in respect of costs. The case law cited is binding on this court but it does not take away the discretion given by the provisions of section 3 and 3A of the Civil Procedure Act. The grant of an order of stay is the exercise of a discretionary power so the issue here is whether the applicants have provided explanations or reasons that merit favourable exercise of discretion.
9.In their submissions, the applicants raised two issues, first is their inability to pay the costs as they see themselves being committed to civil jail unless the stay is granted. The second issue they submit is no evidence the costs as taxed were truly paid by the Respondents to their advocate, and that the advocate will not be the person responsible to pay them back. Section 27 of the Civil Procedure Act states that costs follow the event in this case the conclusion of a suit. Those costs have been taxed. The applicants have not filed any reference against the taxation. If the stay is being sought on the basis of their inability to pay yet they are still pursuing an appeal, what guarantee does the respondents get that their costs will be paid in the event the appeal is unsuccessful? The proposition of inability to pay and without any offer of security makes it difficult for the court to exercise discretion on their favour.
10.In the case of Aron C Sharma v Ashana Raikundalia T/A Rairundalia & Co Advocates the court held as follows on the issue of security:
11.The burden of provision of security is not upon the respondents as the respondents are not the ones seeking stay. In any event, the costs are being paid to counsel and the applicants have not pleaded why they think Mr Omondi advocate is incapable of refunding their money in the event the appeal is successful. Yet still, their fear can be cured by an order that the costs be deposited in a joint account pending hearing and determination of their appeal.
12.On the second issue of the applicants’ application offending order 9 rule 9 of the Civil Procedure Rules, the applicants have submitted that their advocate had told them that he had ceased acting for them and sought refuge in articles 25 (c), 50 (1) and 159 (2) (a, d, e). The respondents said that no leave was sought as required under order 9 rule 9 of the Civil Procedure Rules and thus the application is made at the instance of a stranger and liable for dismissal.
13.Order 9 rule 9 of the Civil Procedure Rules, 2010 (CPR) provides that:
14.In the case of Lalji Bhimji Shangani Builders & Contractors v City Council of Nairobi [2012] eKLR the court held as follows:
15.One of the orderly conduct order 9 rule 9 was intended to cure was provide of payment of costs of the advocate previously in conduct of the matter. This matter is already concluded and although the applicants have contravened rule 9, the same is not a bar for their previous advocate to tax advocate-client costs. Therefore, I find the omission is not fatal and fall under a procedural technicality which can be cured by article 159(2)(d) of the Constitution.
16.In conclusion, I find that the applicants have failed to satisfy conditions necessary for granting a stay of execution and their notice of motion dated March 29, 2022 is without merit and is accordingly dismissed with no order as to costs.
DATED, SIGNED AND DELIVERED AT BUSIA THIS 25TH DAY OF JULY 2022.A OMOLLOJUDGE