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ELCDismissedNot stated in the judgment (Notice of Motion dated 20/02/2025)

Dancun & 11 others v Amoth & 2 others (Environment and Land Appeal E005 of 2025) [2025] KEELC 4595 (KLR)

High Court of Kenya
19 June 2025
2,319 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The applicants moved the court by Notice of Motion dated 20/02/2025 seeking to stay execution of a ruling delivered on 17th February 2025 by Honourable Benjamin Limo in a subordinate court and to restrain the respondents from proceeding with a Bill of Costs pending an intended appeal. The dispute arose from Siaya Suit No. 21 of 2019, in which a preliminary objection on jurisdiction succeeded and costs were allegedly awarded to the respondents; a Bill of Costs dated 11/12/2024 was filed for taxation. The applicants contended that no costs had been awarded and that taxation without a court order was unlawful, and sought a revisit of the audio proceedings. The respondents, through a replying affidavit of the 3rd respondent Livingstone Ragen Amoth, showed that the trial court had confirmed the award of costs in a review ruling of 14/2/2025 and that the taxation ruling was delivered on 6/3/2025. The respondents argued the application was for stay of taxation, not execution, and that the applicants could not review a decision then appeal on the same grounds. The court, citing Order 42 rule 6(2) and the Kenya Shell decision, held that substantial loss must be demonstrated and that at filing there was no decree or order capable of execution since the bill had not been taxed. The application was premature and a non-starter. It was dismissed, with costs abiding the outcome of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application for stay of execution of the ruling of 17th February 2025 and restraint on taxation of the Bill of Costs is merited
  2. 2.Whether there was an order capable of being stayed

Key legal issues

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01

Whether the applicant demonstrated substantial loss and an order capable of being stayed under Order 42 rule 6(2)

Holding

The application failed; no order existed at filing since the bill was yet to be taxed, and no substantial loss was deponed to

Reasoning

Order 42 rule 6(2) requires substantial loss, absence of unreasonable delay and security. The court found the applicants placed no depositions on substantial loss, instead arguing the merits of the appeal. Since the bill of costs had not been taxed, there was no decree or order for execution, rendering the application premature and a non-starter.

p. 4
02

Whether the request to revisit the audio recording could be entertained

Holding

It could not; the application had already been dismissed on 5/3/2025 and that ruling was unappealed and not under review

Reasoning

The court noted it had ruled on the oral application to revisit the audio recording on 5/3/2025, dismissing it for want of merit. That ruling had not been appealed and the present application was not one for review, so the court declined to revisit the issue.

p. 3

Legal principles established

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  • A stay of execution cannot issue where no decree or order capable of execution exists
  • The burden lies on the applicant for stay of execution to demonstrate substantial loss

Court orders

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  1. 1.The Notice of Motion dated 20/02/2025 is dismissed as a non-starter
  2. 2.Costs shall abide the outcome of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B, 3A of the Civil Procedure Act; Order 42 Rule 6 and 7, Order 51 Rule 1 and Order 22(1) of the Civil Procedure Rules

Relief refused

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Stay of execution of the ruling issued on 17th February 2025 and restraint on proceeding with the Bill of Costs

There was no decree or order arising from taxation capable of being stayed; the application was premature and no substantial loss was demonstrated

p. 4

Costs

Costs shall abide the outcome of the appeal

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

There was therefore nothing to be stayed and I agree with the respondents submission in this regard.
p. 4Stay of execution requires an existing order
the burden is on the applicant to prove they will sufier substantial loss should the orders not be granted
p. 4Burden of proving substantial loss
The upshot of the foregoing is that the application in my view is a non-starter and must be dismissed. Costs shall abide the outcome of the appeal.
p. 5Disposition

Issues in the judgment

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minor

Replic affidavit described as supporting affidavit; court treated it as such

minor

Rule cited ambiguously as 'Order 42 Rule b and 7'; court could not make sense of 'Rule b'

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, "Dancun & 11 others v Amoth & 2 others (Environment and Land Appeal E005 of 2025) [2025] KEELC 4595 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 20/02/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4595/eng@2025-06-19

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