Magare Gikenyi J Benjamin v Independent Electoral Committee (IEC) &18; others; Kahura Mundia, & 17 others (Interested parties) [2021] KEELRC 587 (KLR)
The bottom line
#The Employment and Labour Relations Court refused to halt taxation of legal costs owed to KMPDU because the process was already underway and the application missed the legal test for a stay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court should suspend/stay the taxation of the respondent's bill of costs pending hearing of Court of Appeal Application No. 364 of 2021
- 2.Whether the application fits within the dictates of Order 42 Rule 6 of the Civil Procedure Act
- 3.Whether the discretion to grant stay should be exercised on the facts presented
Key legal issues
#Whether stay of taxation could be granted where taxation had already commenced
The stay was refused as the taxation process had already taken off and the application was overtaken by events.
The Deputy Registrar had on 6th July 2021 commenced taxation and directed parties to file written submissions on the bill of costs. By the time the applicant filed the application on 26th July 2021, the process sought to be stayed was underway. Stopping it would not arrest any other matter relating to the ruling of 28th April 2021 and the decree of 9th July 2021.
Whether the application satisfied Order 42 Rule 6 of the Civil Procedure Act
The application could not be fitted within the dictates of Order 42 Rule 6 even if the court were inclined to grant stay pending appeal.
The court observed that even where stay of execution pending appeal could issue, the applicant's case did not meet the statutory criteria. The record of appeal was not evidenced - only a Notice of Appeal was shown, with no record of when the appeal was filed, its nature, or the registry. The facts presented therefore did not invite the court's discretion.
Legal principles established
#- The discretion to grant stay must be exercised on facts and reasons founded on law or crystallized principles of law
- A stay of taxation alone does not arrest execution of the decree
Court orders
#- 1.Application dated 26th July, 2021 dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- null
- null
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Act and the Rules thereto (stay of execution pending appeal)
Relief refused
#Order suspending/staying execution of taxation costs/bill of costs pending hearing and determination of Court of Appeal Application No. 364 of 2021
Taxation had already taken off, rendering the stay overtaken by events; a stay of taxation would not stop execution of the decree; and the application did not meet the requirements of Order 42 Rule 6
Costs
Application dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Save for the above, the suspension/stay of taxation sought is overtaken by events. Such process has taken off and to stop such process will not arrest any other matter with regard to the referenced ruling delivered herein on 28 th April, 2021 and the decree thereof dated 9 th July, 2021.
The discretion given to the court must be exercised on facts and reasons founded on law or crystalized principles of law. the facts as presented by the petitioner do not invite such discretion.
Accordingly, application dated 26th July, 2021 is found without merit and is hereby dismissed with costs.
Issues in the judgment
#The record of appeal referenced by the petitioner is not evidenced in the material before the court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Magare Gikenyi J Benjamin v Independent Electoral Committee (IEC) &18; others; Kahura Mundia, & 17 others (Interested parties) [2021] KEELRC 587 (KLR)", Case Analysis (2021). Petition; Notice of Motion dated 26th July 2021 (Record of Appeal Civil Appeal No. 364 of 2021, Nairobi referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/587/eng@2021-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.