Bethsaida Resort & Spa Ltd v Jean-Pierre Gauderlot [2020] KEELC 2807 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT

AT MOMBASA

MISC APLC NO. 6 OF 2018

BETHSAIDA RESORT & SPA LTD...........................APPLICANT

VERSUS

JEAN-PIERRE GAUDERLOT.................................RESPONDENT

RULING

(Application for leave to appeal an assessment of costs; leave to appeal granted; stay of execution granted subject to deposit of half the amount taxed and a professional undertaking or alternatively all the money be deposited within 60 days)

1. Through an application dated 18 December 2019, the applicant has sought orders for leave to appeal the ruling of Honourable Justice A. Omollo delivered on 16 December 2019. That ruling was in respect of a reference on a taxation of party and party costs.

2. The background is that the applicant had wished to purchase from the respondent the land parcel Kwale/Diani Complex/246 for a sum of Kshs. 45,000,000/=. A letter of offer was floated and the deposit of 10% being Kshs. 4,500,000/= was made by the applicant. The applicant was to obtain the balance through a loan facility which became complicated and did not materialize. The applicant thus sought a refund of the sum deposited, that is the sum of Kshs. 4,500,000/=. Pursuant thereto, the applicant filed a plaint in the Chief Magistrate’s Court at Kwale, being the case Kwale CMCC No. 507 of 2017 seeking inter alia a refund of the deposited amount of Kshs. 4,500,000/= and a declaration to void the sale agreement between them. A preliminary objection was raised that the subject matter of the suit is Kshs. 45,000,000/= thus beyond the jurisdiction of the Magistrate’s Court. The preliminary objection was upheld and the suit was dismissed on 3 January 2018. The respondent then had costs assessed at Kshs. 1,210,475/=. Aggrieved, the applicant filed a reference to this court and asked this court to reassess the party and party costs arguing that it was wrong to award instruction fees on the sum of Kshs. 45,000,000/=. The court (A. Omollo J), still charged instruction fees on the sum of Kshs 45,000,000/= thus the sum of Kshs. 873,750/= and made some minor adjustments on other items. The applicant now wishes to file an appeal against the said decision and has thus sought leave to appeal and stay of execution pending determination of the appeal.

3. Ms. Nabwana for the applicant contended that value of the subject matter was Kshs. 4,500,000/= and not Kshs. 45,000,000/=. On security she stated that her client was ready to deposit half of the amount taxed in a joint interest earning account, and counsel for the applicant was ready to give a professional undertaking on the balance.

4. Mr. Wafula for the respondent argued that the value of the subject matter was determined at Kshs. 45,000,000/= and no appeal was filed on this finding. He thought that the applicant has not demonstrated that it deserves to be given leave to appeal.

5. I have considered the matter. On whether or not to grant leave, I think that the intended appeal is not frivolous. There is an issue to be tried as to whether the subject matter in the suit was Kshs. 45,000,000/= or Kshs. 4,500,000/=. One could argue that what the applicant claimed in the suit before the Magistrate was only the sum of Kshs. 4,500,000/= and nothing more. There is of course the other argument that what was in issue was land that had value of Kshs. 45,000,000/=. There are valid points in both arguments and I think that the applicant has made out a case that deserves to be heard at the Court of Appeal. I therefore grant leave to appeal.

6. On security, I am prepared to allow one half of the amount taxed to be deposited in a joint interest earning account in the names of counsel for the applicant and respondent, and the other half to be secured by a professional  undertaking of counsel for the applicant. This be done within 60 days. If no undertaking  will be tendered, then all the money will need to be deposited. If security is not tendered as directed above, then the stay will lapse.

7. On costs, the same shall be in the intended appeal.

8. Orders accordingly.

DATED, SIGNED and DELIVERED at MOMBASA this 10th day of March, 2020.

______________

MUNYAO SILA

JUDGE.

IN THE PRESENCE OF:

Mr. Ataka for the applicant.

Mr Wafula for the respondent.

Court Assistant; David Koitamet.