1. Before this court for determination is a Notice of Motion dated 16 th
February, 2024 by the 2 nd Respondent/Applicant. The Application is
said to be brought under Section 1A, 1B, 3, and 3A of the Civil
Procedure Act; and Order 42 Rule 6(1), (2) and (4) of the Civil
Procedure Rules.
2. The Applicant seeks for the following orders:
i. Spent.
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ii. Spent.
iii. THAT pending hearing and determination of the
intended Appeal this Honourable Court be
pleased to grant an order of stay of the taxation
proceedings herein.
iv. THAT this Honourable Court does issue such
further orders or directions that it may deem fit
to grant.
v. THAT Costs of the Application be in the cause.
3. The grounds relied upon are on the face of it, and on a Supporting
Affidavit similarly dated, and sworn by Peter Wachira Maina, a
principle officer of the trustee of the Applicant.
4. The Applicant’s case is that they are aggrieved – and have filed a
Notice of Appeal dated 22 nd December, 2023 for having been wrongly
ordered to pay costs of the judicial proceedings in a judgment dated
15 th December, 2023. That on 13 th January,2024 the Applicant applied
to court for certified typed proceedings; and copied the Respondents.
5. It was averred that on 22 nd January, 2024 the Applicant was served,
by the Respondent herein, with a Bill of Cost dated 15 th January, 2024
seeking Kes. 1,069,950 together with a Taxation Notice indicating
that taxation will be done on 12 th February, 2024. That on the said 12 th
February, 2024 the Deputy Registrar gave the 18 th March, 2024 as the
date for mention to confirm filing of submissions and is also likely to
give a ruling date.
JR. NO. E129 OF 2021 RULING 3 | Page
6. As a result, the Applicant is apprehensive that the intended appeal
would be rendered nugatory by the taxation proceedings, decree and
execution thereof. To that end, the Applicant beseeches this court to
order stay of taxation proceedings pending the hearing and
determination of the intended appeal.
7. Further, that the Applicant would suffer irreversible prejudice in the
event that the Certificate of Taxation is challenged by way of
Reference, only for the Appeal to be successful.
8. As per the Applicant, the Appeal is arguable with high chance of
success; and that the balance of convenience tilts in the favor of
granting an order to stay the taxation proceedings. Also, that they are
ready to comply with conditions set by the court, including deposit of
security, pending the hearing and determination of the intended
appeal.
9. The Application is opposed
10. The Respondent filed their Replying Affidavit dated 8 th March, 2024
and deponed by William Malonza the 118 th Ex-parte
Applicant/Respondent on his behalf and on behalf of the 1 st – 119 th Ex-
Parte Applicant.
11. The deponent stated that the Application is frivolous, vexatious, lacks
merit, and ought to be dismissed with costs. That it is premature as
the total cost is yet to be ascertained, thus security - which is an
essential condition for grant of stay – cannot be offered on an
unascertained cost.
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12. That the Applicant has merely mentioned, but not demonstrated the
prejudice they would suffer should the taxation proceedings be
allowed to continue; and that Bill of Costs cannot occasion any loss as
the only effect of taxing a Bill of Costs is the ascertainment of the
quantum of costs payable.
13. To the Respondent, it is only after the Bill of Cost has been taxed and
ascertained that the High Court would find basis of establishing the
security require to satisfy this condition. It is maintained that the
taxation of a Bill of Cost is not the same as execution; but the two are
distinct and separate.
14. According to the deponent, the Court of Appeal has not granted a stay
of execution of the judgment that is the basis of this instant matter –
costs. Also, that the taxation proceedings would neither render the
appeal nugatory nor violate the rights of appeal. That the intended
appeal is not arguable and has negligible chances of success.
15. It is deponed that a stay being an equitable remedy, the court must
strike a balance between the competing interests of the parties,
keeping in mind the right to a fair hearing, which the Respondent
argues would be denied if the stay is granted. In the end, that the
Application is an abuse of court’s time and as such it ought to be
dismissed with cost.
16. In buttressing their cases, the Applicant filed their written
submissions dated 21 st March, 2024; while the Respondent’s written
submissions are dated 26 th April, 2024. I have paid due regard to the
submissions.
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17. In the main, the Applicant submissions reiterated their case as
captured herein before. Relied on Civil Procedure Rules: Order 42
Rule (6) sub-rule (4); and Order 50 Rule 4. Further reliance was
placed on the Court of Appeal case of Hall Equatorial Limited v
Abdul Rahim [2020] eKLR; and the High Court cases of Njoro
Canning Factory v john Michael Mbugua & another [2015]
eKLR; National Industrial Credit Bank Ltd v Aquinas
Francis Wasike and another [2006] eKLR; and Muthee
Giciaini & another v Kevin Oduor Odhiambo [2021] eKLR.
18. On their part, the Respondent similarly repeated their case as
discussed herein before. Moreover, they submitted that an appeal
cannot lie as to an order of cost only, as cost is by court’s discretion.
The court of Appeal case of Alibhai Bhanji -Vs- Essa Thawer
(5), (1911--12), 4 E.A.L. R. 59 was relied upon.
19. The Respondent further posited that the Applicant has not met the
threshold required to grant the stay of taxation proceedings pending
appeal as prayed for. Order 42 Rule 6 (1) and (2) of the Civil
Procedure Rules were relied on. Reliance was placed on the cases of
Dr. Kevin A Ggrey & Another -Vs- Housing Finance
Company Ltd & 2 Others (2013) eKLR; and Jamii Bora Bank
Limited & Another -Vs- Samuel Wambugu Ndirangu (Civil
Appeal No. E030 of 2021).
ANALYSIS AND DETERMINATION
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20. I have considered the application, responses, annexures thereto, and
the learned counsel’s submissions. The issue for determination is
whether the Application is merited to grant the reliefs sought.
21. Order 42 Rule 6(1) of the Civil Procedure Rules stipulates inter alia,
that no appeal or second appeal shall operate as a stay of execution on
proceedings under a decree or order appealed from unless by order of
the court appealed from and for sufficient cause. Further, Rule 6(2)
Civil Procedure Rules sets out the conditions for stay of execution.
22. At this juncture, it is imperative to note that there is a difference
between stay of proceedings and stay of execution. I am in agreement
with the observations of Gikonyo J in Kenya Wildlife Service vs
James Mutembei [2019] eKLR, citing from Halsbury’s Law of
England, 4th Edition vol. 37 page 330 of 332, where the leaned judge
observed that stay of proceedings is a serious, grave and fundamental
interruption of the right of a party to conduct litigation; it impinges
on access of justice, expeditious trial and the right to fair trial.
23. The order of stay of taxation proceedings as sought herein, are
proceedings in which the Respondent who was the successful party in
this case, seeks to have his costs assessed. Therefore, all the following
factors apply: expeditious disposal of the matters, access to justice
and the right to be heard and to have the issue determined.
24. The issues before this court is not novel. Dealing with a similar issue
stay of taxation proceedings pending appeal I am in consonance with
the High Court’s observations in the case of NCBA Bank Kenya
JR. NO. E129 OF 2021 RULING 7 | Page
Limited v Seaman Building & 3 others [2022] eKLR where it
was stated that;
“19. What about the pros and cons? The application is
premature, as the applicant does not stand to suffer any
prejudice by the mere fact of the taxing of the costs.
Those proceedings in my view will not in any way violate
the applicant’s right of appeal neither will they in any
way render the appeal nugatory. The outcome of
taxation proceedings can be dealt with, but by
themselves they are not prejudicial to the applicant and
in any event no sufficient cause has been placed before
me to show how the proceedings will render the appeal
nugatory. It is in my view not in the interests of justice to
allow the application for stay of proceedings.”
25. Similarly, I find that the instant matter is premature, taxation by itself
does no prejudice the Applicant, the right of appeal is not shown will
be violated, and the appeal has not been demonstrated how it will be
rendered nugatory.
ORDER
1) The Application lacks merit and the same is dismissed with cost
to the Ex-parte Applicants/Respondent.
2) It is so ordered.