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AT NAIROBI
(CORAM: WARSAME, SICHALE & OTIENO-ODEK, JJ.A)
CIVIL APPLICATION NO NAI 32 OF 2015
BETWEEN
GOVERNORS BALLON SAFARIS LTD.APPLICANT
AND
SKYSHIP COMPANY LTD...1ST RESPONDENT
COUNTY COUNCIL OF TRANSMARA.............2ND RESPONDENT
(an application for stay of execution of the
certificate of taxation or the decree on costs pending
the hearing and determination of an intended
appeal against the ruling an order of the High court
of Kenya at Nairobi (Gikonyo, J.)
in
H. C. C. Case No 461 of 2008)
********
RULING OF THE COURT
Governors Ballon Safaris Ltd, the applicant herein, sued
the 1st respondent, Skyship Company Ltd, and the 2nd respondent, the
County Council of Transmara, in High Court Civil Case No 461 of
2008.
principle, and that the assessment of the costs payable was proper,
stating that:
At paragraph 11 of the Amended plaint the
plaintiff puts the particulars of loss at an
estimated minimum of Kshs 1.5 billion. The
pleadings were clear that the value of the
subject matter was an estimated loss of KShs
1.5 billion. The taxing officer used her
discretion as guided by the Advocates
Remuneration Order, 2006 and correctly
directed herself on the value of the subject
matter.
The
instruction
fee
of
Kshs
22,847,000.00 was proper. There is no error
in principle as the taxation and all the issues
before the taxing officer were decided on
merit.
The learned judge ended his ruling on the matter as follows:
I do not see any error in principle or any
exceptional circumstances which will impel
me to interfere with the discretion of the
taxing officer herein. I dismiss the reference
dated 23rd July 2014 with costs to the
respondents. Before I close, I wish to make a
finding on the application for stay of
execution. Those applications are spent after
the court granted stay of execution on
condition that the applicant deposits the
entire decretal sum in court. If those
conditions were not met, the order lapsed
after 45 days. And now with this decision,
there is nothing to stop execution of the
decree. It is so ordered.
The applicant being aggrieved with the whole of the decision of the
taxing master filed an appeal, citing various grounds to upset the entire
decision. As a measure to preserve its current status, the applicant filed
the present application, brought under rule 5(2)(b) of this Courts rules
seeking an order in the main, that
This Honourable Court be pleased to grant an
order of stay of the execution of the
Certificate of Taxation or decree on costs in
Nairobi High Court Civil Case No 461 of 2008
consequent to the ruling and order made on
4th February 2015, pending the hearing and
determination of the intended appeal against
the said ruling and order of 4th February
2015.
The gist of the grounds in support of the application are the
applicant has strong arguable grounds of appeal in that the learned
judge erred in failing to find that the 2nd respondent ceased to exist as a
party to the suit and that consequently, the advocates on record for the
2nd respondent have no standing to appear on its behalf; that the learned
judge acted in a partisan manner by enjoining the County Government of
Narok to replace the 2nd respondent and thereafter declaring that
Kemboy & Co Advocates were properly on record, and thereafter
assigning the County Government of Narok the costs that had unlawfully
been awarded. In addition, the applicant claims that this bias led him
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not to receive a fair trial, and was also an indication that the learned
judge did not properly apply the law in determining the issues before
him.
The applicant also argues that the intended appeal will be rendered
nugatory, as it will suffer irreparable loss if it has to pay the decretal
sum. The applicant further argues that since it has already provided
security for costs to the 1st respondent, it is in the interest of fairness
and justice that the order of stay be granted.
The application was opposed. The first challenge to the application
is by the 1st respondent who in its written submissions has stated that
this Court has no jurisdiction under rule 5(2)(b) to grant an order of stay
since there was no positive order made by the High Court that would be
capable of staying. The 1st respondent contends that the grounds of
appeal raised by the applicant were frivolous; that this Court could not
interfere with the discretion of the learned judge who exercised his
discretion in the review of the taxing masters decision, and that there
was no indication that the learned judge improperly exercised that
discretion. In addition, the 1st respondent stated that the applicant has
not indicated in what manner the intended appeal would be rendered
nugatory and as such has urged us to dismiss the application.
The 2nd respondent also opposed the application. Its position is that
the applicant has not raised any issues that are arguable, as the grounds
intended to be raised by the applicant in the appeal are the result of a
narrow and pedantic construction of the law, and a misapplication of the
provisions of Order 24(8) of the Civil Procedure Code. The 2nd respondent
submits that the County Government of Narok was properly joined to the
proceedings, since it is now an issue of public notoriety that defunct local
authorities were to transition to the respective county governments. As
such the county government did not need to seek leave of the court to be
enjoined as a party to the suit. The 2nd respondent urged that the
applicant does not deserve the order of stay as its conduct indicates that
it only wants to frustrate the 2nd respondents efforts to execute the order
of costs.
In granting orders under rule 5(2) (b), this Court exercises original
jurisdiction. This much the Court in Ishmael Kagunyi Thande v
Housing Finance of Kenya Ltd Civil Application No. Nai 157 of
2006 stated in the following manner:
The jurisdiction of the court under rule 5(2)
(b) is not only original but also discretionary.
This was reiterated by Githinji JA in Equity Bank Limited vs.
West Link Mbo Limited [2013] eKLR (Civil Application No. NAI 78 of
2011) wherein he stated that:
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DEPUTY REGISTRAR
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