'(The application)
Peter Kimani Kirika (hereinafter referred to as the applicant) has come to this court vide application dated 11th June 2025 seeking a stay of the taxation of the 1st to 6th Respondent Bill of costs and subsequent proceedings pending the hearing and determination of the appeal in the superior court. The application is based on grounds that Judgment was entered against the Applicant herein and in favour of the decree holders in Nakuru ELC Appeal No. E016 OF 2023 on 21st November 2024.
The applicant, being dissatisfied with the judgment delivered has preferred an appeal before the superior court and to that effect filed a notice of appeal before this court dated 3rd December 2024. A request for typed proceedings was made without delay vide a letter dated 9th December 2024 and filed on the same date. Since then the typing of the proceedings has not been completed to enable the compiling of the record of appeal as is the practice of the superior court.
The applicant laments that the respondents herein have since proceeded to prepare and file for taxation of their bill of costs despite knowing very well, that there is an appeal pending before the superior court. The Applicant is apprehensive of suffering great prejudice for the sole reason that the business he conducts on the disputed property is his sole source of income and as it stands there is- imminent risk that he may lose the same owing to the decision of the Honorable Court which puts his lease with the 7th, Respondent at jeopardy.
The applicant maintains is that the appeal is meritorious. The applicant contends that the decree holders, herein will not suffer any prejudice owing to the fact that the judgment issued did not materially interfere with the status quo on the ground. According to the applicant, this Honorable Court is conferred with the inherent powers and discretion to grant the orders sought in the application herein. This application is made without undue delay and that i t is in the interest of justice that the orders, sought are granted. The applicant states that the suit property is his sole source of livelihood and that he has not been able to conduct any business on the suit property due to the pending cases and therefore he is in dare financial state. That should this honorable court fails to grant a stay of taxation, proceedings the harm would be irreversible and that the respondents will not be able to pay back the cost. The applicant contends, that the respondents suffer no prejudice if stay of taxation is granted as if the decision of this court is upheld the respondents will proceed to tax.
(b) (The reply)
The respondent filed a replying affidavit whose gist is that the application is incompetent and without merit and is brought merely to delay the lawful taxation proceedings arising from the judgment in the matter of Nakuru ELC Appeal No. E016 OF 2023 entered and delivered on 21st November 2024, where the appeal was merited and allowed setting aside the ruling by the Nakuru Business Premises Rent Tribunal in case No. E016 of 2022 for lack of jurisdiction with costs of the appeal to the appellants
According to the respondent, there is no competent appeal because the applicants Notice of Appeal was lodged on the 6th day of December 2024, which is outside the 14 days within which such notice ought to have been lodged. The judgment sought to be appealed against was delivered on 21st November 2024, and the last day for filing the Notice of Appeal was therefore 5th December 2024. Further, there is no evidence that the Applicant sought and obtained leave to file the notice of appeal out of time.
The respondent contends that in the absence of a valid and competent appeal, there exists no legal or procedural basis upon which the Applicant can anchor the present application. The judgment delivered on 21st November 2024 remains unchallenged in law, and the Respondents are within their rights to proceed. Filing a notice of appeal does not automatically stay the execution of a judgment or taxation proceedings as stated under Order 42 Rule 6 of the Civil Procedure Rules. This application undermines any claim of urgency or prejudice by the applicant and amounts to unreasonable delay.
According to the respondent, the judgment of this Honorable Court delivered on 21st November 2024 allowed the appeal and, in effect, dismissed the Applicant''s claim and therefore there is nothing to be stayed save for orders on costs. That the applicant''s claims of irreversible harm and financial hardship are merely speculative, and no substantial evidence of loss or prejudice has been presented. The applicant has not offered any security to warrant the granting of any orders.The application dated 11Th June 2025 is brought in bad faith and is meant to delay the execution of a final judgment, and is therefore an abuse of court process.
(c) Rival Submissions.
Applicant submits through written submissions that it is a settled principle of law that once a party lodges a Notice of Appeal under Rule 77 of the Court of Appeal Rules, the matter transitions to the exclusive domain of the Court of Appeal. The Honorable Court, having rendered its judgment, becomes functus officio about the issues under appeal. The Notice of Appeal is not a pleading before this Honorable Court. It is an instrument of the Court of Appeal, governed exclusively by the Court of Appeal Rules. Once it is any challenge regarding its form, substance, or timeliness falls strictly under the jurisdiction of the Court of Appeal -not the court that rendered the impugned decision.
This very position was taken by Hon. Ngugi, J. in Sammy Kuria Ndug''u v Samuel Mbugua Ikumbu [202 Il eKLR thus:
"The binding reasoning of the Court of Appeal in the Trimborn Agricultural Engineering Limited Case and the persuasive reasoning of the High Court in the Cosmas Mutiso Muema Case appear self-evidently dispositive of the case. While the High Court is clothed with jurisdiction by section 7 of the Appellate Jurisdiction Act to extend time for a litigant who is desirous of filing a Notice of Appeal to the Court of Appeal for the first time and before he has taken any action at the Court of Appeal, such authority dissipates once the intended Appellant has taken any step at the Court of Appeal. This is so however incompetent the Notice of Appeal filed at the Court of Appeal is. Once a party has filed a Notice of Appeal, the authority to strike it out extend time deem it regular or another action related to it lies with the Court of Appeal not the High Court. ”
The applicant argues that allowing this Honorable Court to pronounce itself on the validity or timeliness of a notice of appeal would effectively be permitting a lower court to usurp the supervisory function of a superior court. That would be a direct affront to the hierarchy of courts and would violate the principle of judicial competence.
The applicant argues that the objection raised by the Respondent before this Honorable Court is procedurally incompetent and improperly placed. The filing of a Notice of Appeal does not trigger any procedural step within the trial court requiring the court''s scrutiny or intervention.
Accordingly, the applicant urges this Honorable Court to find that it lacks jurisdiction to determine the objection raised and to strike it out or disregard it entirely for being improperly before this forum.
On whether this honourable court should be pleased to issue a stay of tee taxation proceedings pending the hearing and determination of the appeal the applicant submits that the only issue warranting an application for stay was the issue of costs.
The subject application was made after service of the respondents'' bill of costs, and therefore the delay was not inordinate as the subject application is ripe after the bill of costs was filed and served.
On whether this Honorable court ought to stay the taxation proceedings. The applicant submits that it well within the interest of justice and procedural fairness that this Honorable Court grants a stay of the taxation proceedings pending the hearing and determination of the appeal.
The applicant relies on the principles that a court must consider in an application for stay of proceedings set out in the case of Global Tours and Travels Limited Nairobi Winding Up Cause oe 43 of 2000 cited in Kenya Power & Lighting Company Ltd vs Esther Wanjiru okabi 2014 eKLR. In that case, Ringera J (as he then was) stated as follows: -
"As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice. the sole question is whether it is the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously"
The applicant contends that it would save both this Honorable Court''s time and that of the taxing master if the taxation proceedings are stayed. That a slight variation in the judgement of this Honorable Court by the superior court would render the whole process of taxation and subsequent proceedings redundant.
The applicant relies on the view taken by the learned E.M Muriithi J in the case of Ewaso Ngiro North Development Authority v Apa Insurance Limited (Civil Appeal 58 of 2018) [20241 KEHC 3779 (KLR) (4 April 2024) (Ruling) where n discussing this very issue, he pronounced himself as follows:
"This court is minded that taxation is a legitimate process of Advocates Remuneration Order and the Civil Procedure Rules and the Applicant was duly invited to participate in the consideration of Bill of Costs by filing a replying affidavit, or otherwise challenge the bill of costs. It would, on face value, appear to be prudent for the Applicant to await the conclusion of the taxation proceedings and, if aggrieved, then seek stay of execution pending appeal. But if the appellate court will have made a determination that affects the costs of the suit already taxed, judicial time would have been wasted. I respectfully agree with the Court (Maureen Onyango, J.) in Parick Wa la Kuloba v Director Chie Executive Ocer Ken a Industrial Research & Develo ment Institute (2021) elCLR that "it makes judicial sense to avoid a situation where a taxation will eventually have to be repeated or become redundant depending on the outcome of the appeal. "
The applicant urges that the mandate of this Honorable Court per the provisions of Sections IA and 1B of the Civil Procedure Act is the expedient, efficient and just disposal of disputes. Staying the proceedings will enable this Honorable Court to achieve just that. Should the subject respondents emerge successful in appeal and the superior court uphold the decision of this Honorable Court, the respondents herein will just pick up from where they left off in the taxation proceedings and move to execution of the same. On the flip side, should they be allowed to proceed and there is an overturn of a slight variation of the judgement of 21st November 2024, then the taxation proceedings would be rendered redundant and would have been of no note. This Court should weigh the two scenarios and determine what would serve its overriding objective.
Having stated the above, the applicant submits that on balance of convenience and proportion, the Applicant stands to suffer reasonable prejudice should the orders sought not be granted. Order 42 Rule 6 (2) of the Civil Procedure Rules provides that no order for stay of execution shall be made in regard to a stay of execution unless:-
(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
The applicant argues that this application does not in any way seek to change the status of the occupation and use of the suit property by the respondents, by admission of the respondents, the court indeed allowed the respondents'' appeal and the only issue left is the issue of costs. The applicant does not seek a stay of the above, only the issue of costs as he pursues an appeal of the whole decision, pending the same and even pending the decision by this Honorable Court, the said respondents have always been in possession and use of the suit property, the same will not change pending the outcome of the appeal. On the other side, however, it would be greatly prejudicial to the Applicant should taxation be allowed to conclude and execution of costs proceed, yet there is an active appeal, which appeal may be successful varying the issue of costs with the Applicant having been forced to pay costs, coming again to maybe recover the same. The most prudent cause of action would be to stay the proceedings pending appeal.
The applicant cites the case of RWW v EKW [2019] eKLR, where the court considered the purpose of a stay of execution order pending appeal, in the following words:
"The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. "
The Applicant complied with the legal procedures for appeal and is just exercising their right under Article 50 of the Constitution. To reiterate the prejudice that would be occasioned upon the applicant would not be substantial, and that is not sufficient in this case, the prejudice that would be suffered by the applicant would be irreparable and could not be compensated through damages.
Respondents also filed written submissions. On whether the Applicants have satisfied the legal threshold for the grant of a stay of taxation proceedings, the respondent argues that this application invokes the discretionary jurisdiction of this Honorable Court under Order 42 Rule 6(1) of the Civil Procedure Rules, 2010, The conditions precedent for the grant-of a stay are delineated in Rule 6(2), which provides that:
"No order for stay of execution shall be made under subrule (1) unless (a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and (b) such security as the court orders for the due performance such decree or order as may ultimately be binding on him has been given by applicant
The Respondents acknowledges the well-settled principles governing stay of execution, as articulated in Runda Water Limited & another v Timothy John Nicklin & another [20171 eKLR and Elena D. Korir v Kenyatta University [20121 eKLR, where Justice L Njuguna observed thus;
"For an order of stay of execution to be granted, the court has to be satisfied that the applicant has met the provisions of Order 42 rule 6.”
In the case of Elena D, Korir vs Kenyatta University (2012) eKLR where Justice Nzioki Wamakau had this to say: -
"the application must meet a criteria set out in precedents and the criteria is best captured in the case of Halal & another vs Thornton & Turpin Ltd where the Court of Appeal (Gicheru JA, Chesoni & CockarAg JA) held that
"The High Court''s discretion to order stay of execution of its order or decree is fettered by three conditions, namely: - Sufficient cause, Substantial loss would ensue from a refusal to grant stay, the applicant must furnish security, the application must be made without unreasonable delay."
Further, the respondent draws the attention of this court to the precedent set forth in RWW v EKW [20191 eKLR in which the court emphasized that the primary objective of stay orders is to preserve the subject matter of the appeal so that the Appellant''s right of appeal is not rendered illusory: "The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. "
Given, that the applicant seeks a stay of the taxation of the 1st to 6th Respondents/decree holders'' bill of costs and subsequent proceedings pending the hearing and determination of the appeal. The principles that a court must consider in an application for stay of proceedings are set out in the case of Global Tours and Travels Limited Nairobi Winding Up Cause No. 43 of 2000 cited in Kenya Power & Lighting Company Ltd vs Esther Wanjiru Wokabi 2014 eKLR In that case, Ringera J (as he then was) stated as follows:
"As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice. The sole question is whether it is the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously"
In light of the foregoing precedents the respondents submit that the Applicant must satisfy the well-established tripartite test: demonstrating sufficient cause, establishing that substantial loss will occur in the absence of the orders.
The respondents argue that the judgment delivered on 21st November 2024 conclusively allowed the Respondents'' appeal and dismissed the Applicants claim, save for the issue of costs. The present application does not seek to alter the outcome of that judgment which remains unchallenged in law but seeks instead to delay lawful taxation proceedings flowing from it.
The Applicant''s invocation of stay pending appeal is fundamentally flawed, as no competent appeal exists; the Notice of Appeal was lodged out of time on 6th December 2024, without leave, contrary to Rule 75(2) of the Court of Appeal Rules.
There is no competent appeal before the Court. The Applicant''s Notice of Appeal was lodged on 6th December 2024 which fell outside the 14-day period prescribed for filing such notices under Rule 75(2) of the Court of Appeal Rules. The impugned judgment was delivered on 21st November 2024 meaning that the statutory deadline for filing the Notice of Appeal lapsed on 5th December 2024. There is no evidence that the Applicant ever sought or obtained leave to lodge the notice out of time.
According to the respondent, in the absence of a valid and competent appeal, the present application is devoid of any legal or procedural foundation. The judgment delivered on 21st November 2024 remains intact and unchallenged in law, and the Respondents are fully entitled to proceed with the execution of the consequential orders, including taxation of costs. The current application, premised on an irregular and defective appellate process, is therefore fatally incompetent and an abuse of the court process. The present application is not only devoid of merit but has been brought merely to delay execution of a final and lawful decree. The Applicant has also failed to demonstrate the kind of substantial loss required to warrant the exceptional remedy of stay. Allegations of financial hardship and prejudice are purely speculative and unsupported by evidence.
Ultimately, the respondent submits that the application dated 11th June 2025 is a classic abuse of court process, meant solely to frustrate the Respondents from enjoying the fruits of a lawful judgment. The same ought to be dismissed with costs.
(d) Analysis and Determination.
I have considered the application herein, the rival submissions and do find that the same revolves on an issue that this court has dealt with time and again. Stay of proceedings pending appeal is not a grey matter. The principles that govern stay of execution were laid down in the case of William Odhiambo Ramogi & 3 others v Attorney General & 6 others'' Muslims for Human Rights & 2 others Interested Parties) [20201 eKLR cited with approval in Mbiti & another v Thome & another Civil Appeal EOIO of 2024 2024 KEHC 5441 where the court stated:-
"A scan of our decisional law reveals that our Courts have established the following principle’s for the grant of stay of proceedings pending the hearing and determination of an appeal over an interlocutory application to a higher Court.: a. First, there must be an appeal pending before the higher Court b. Second, where such stay is sought in the Court hearing the case as opposed to the higher Court to which the Appeal has been filed and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher Court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the Court to which an appeal is preferred because such a Court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly c. Third, the Applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable d...Fourth, the Applicant must demonstrate that the Appeal would be rendered nugatory if the stay of proceedings is not granted e. Fifth, the Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; and f. Sixth, the Applicant must demonstrate that the application for stay was filed expeditiously and without delay. "
The first issue raised by the parties is whether there is a valid notice of appeal filed in this matter. It is evident that the notice of Appeal was filed on the 6th of December 2024 whereas the judgment was delivered on the 22nd November 2024. It is clear that the notice of appeal was filed out of time. The respondent argues that no competent appeal exists as the notice of appeal was lodged out of time without leave of the court contrary to rule 75(2) of the Court of Appeal Rules.
On this issue, I do hold that though the notice was filed out of time, I have no jurisdiction to hold that the notice of appeal is invalid as the same rests with the court of appeal of Kenya. I agree with the holding by Ngugi J In Sammy Kuria Ndung’u v Samuel Mbugua Ikumbu(2021) Eklr that once a party has filed a notice of appeal, the authority to strike it out, or extend time, deem it regular or any another action related to it lies with the Court of Appeal not in the High Court. Pronouncing myself on the validity of the notice of appeal will be usurping the supervisory powers of the Court of Appeal. This court holds that upon delivery of judgment, it becomes functus officio on the merits in the case and cannot revisit the matter save only on stay of execution pending appeal. The upshot of the above is that there is an appeal pending.
One of the cardinal issues to be considered on grant of stay of proceedings pending appeal is the issue of delay. There should be no inordinate delay which can be deduced from the facts of the case. In this matter, the judgment was delivered on the 21st of November 2024, the notice of appeal was filed on 6th December 2024. The bill of costs was filed on the 20th of May 2025 whereas the application to stay proceedings was filed on the 11th June 2025. I do find that time starts running when the bill of costs was filed and therefore it is evident that the applicant took 22 days to file the application. This was not inordinate delay. The application was filed expeditiously and without delay.
The applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable. The applicant has not annexed the Memorandum of appeal to assist the court to determine whether the appeal is arguable.
The applicant must further demonstrate that the appeal shall be rendered nugatory if stay of proceedings is not granted. The applicant argues that it would save the time of the court and the taxing master if the taxation is stayed. I do agree with the applicant that if taxation proceeds and the appeal is later allowed, it will amount to a waste of judicial time. However, I add that if the taxation is stayed and the appeal is later is dismissed, then the taxation would have been delayed. Balancing the two issues, I do find that it would be prudent to save judicial time and mitigate the costs that are likely to be suffered by the respondent with security for costs.
The upshot of the above is that I do grant stay of taxation pending appeal on condition that the applicant deposits within 20 days, Ksh 500,000 as security for costs in an interest earning account to be opened in the names of both counsel for the parties, in a reputable bank in Kenya. Failure of which, taxation to proceed.
'
Peter Kimani Kirika (hereinafter referred to as the applicant) has come to this court vide application dated 11th June 2025 seeking a stay of the taxation of the 1st to 6th Respondent Bill of costs and subsequent proceedings pending the hearing and determination of the appeal in the superior court. The application is based on grounds that Judgment was entered against the Applicant herein and in favour of the decree holders in Nakuru ELC Appeal No. E016 OF 2023 on 21st November 2024.
The applicant, being dissatisfied with the judgment delivered has preferred an appeal before the superior court and to that effect filed a notice of appeal before this court dated 3rd December 2024. A request for typed proceedings was made without delay vide a letter dated 9th December 2024 and filed on the same date. Since then the typing of the proceedings has not been completed to enable the compiling of the record of appeal as is the practice of the superior court.
The applicant laments that the respondents herein have since proceeded to prepare and file for taxation of their bill of costs despite knowing very well, that there is an appeal pending before the superior court. The Applicant is apprehensive of suffering great prejudice for the sole reason that the business he conducts on the disputed property is his sole source of income and as it stands there is- imminent risk that he may lose the same owing to the decision of the Honorable Court which puts his lease with the 7th, Respondent at jeopardy.
The applicant maintains is that the appeal is meritorious. The applicant contends that the decree holders, herein will not suffer any prejudice owing to the fact that the judgment issued did not materially interfere with the status quo on the ground. According to the applicant, this Honorable Court is conferred with the inherent powers and discretion to grant the orders sought in the application herein. This application is made without undue delay and that i t is in the interest of justice that the orders, sought are granted. The applicant states that the suit property is his sole source of livelihood and that he has not been able to conduct any business on the suit property due to the pending cases and therefore he is in dare financial state. That should this honorable court fails to grant a stay of taxation, proceedings the harm would be irreversible and that the respondents will not be able to pay back the cost. The applicant contends, that the respondents suffer no prejudice if stay of taxation is granted as if the decision of this court is upheld the respondents will proceed to tax.
(b) (The reply)
The respondent filed a replying affidavit whose gist is that the application is incompetent and without merit and is brought merely to delay the lawful taxation proceedings arising from the judgment in the matter of Nakuru ELC Appeal No. E016 OF 2023 entered and delivered on 21st November 2024, where the appeal was merited and allowed setting aside the ruling by the Nakuru Business Premises Rent Tribunal in case No. E016 of 2022 for lack of jurisdiction with costs of the appeal to the appellants
According to the respondent, there is no competent appeal because the applicants Notice of Appeal was lodged on the 6th day of December 2024, which is outside the 14 days within which such notice ought to have been lodged. The judgment sought to be appealed against was delivered on 21st November 2024, and the last day for filing the Notice of Appeal was therefore 5th December 2024. Further, there is no evidence that the Applicant sought and obtained leave to file the notice of appeal out of time.
The respondent contends that in the absence of a valid and competent appeal, there exists no legal or procedural basis upon which the Applicant can anchor the present application. The judgment delivered on 21st November 2024 remains unchallenged in law, and the Respondents are within their rights to proceed. Filing a notice of appeal does not automatically stay the execution of a judgment or taxation proceedings as stated under Order 42 Rule 6 of the Civil Procedure Rules. This application undermines any claim of urgency or prejudice by the applicant and amounts to unreasonable delay.
According to the respondent, the judgment of this Honorable Court delivered on 21st November 2024 allowed the appeal and, in effect, dismissed the Applicant''s claim and therefore there is nothing to be stayed save for orders on costs. That the applicant''s claims of irreversible harm and financial hardship are merely speculative, and no substantial evidence of loss or prejudice has been presented. The applicant has not offered any security to warrant the granting of any orders.The application dated 11Th June 2025 is brought in bad faith and is meant to delay the execution of a final judgment, and is therefore an abuse of court process.
(c) Rival Submissions.
Applicant submits through written submissions that it is a settled principle of law that once a party lodges a Notice of Appeal under Rule 77 of the Court of Appeal Rules, the matter transitions to the exclusive domain of the Court of Appeal. The Honorable Court, having rendered its judgment, becomes functus officio about the issues under appeal. The Notice of Appeal is not a pleading before this Honorable Court. It is an instrument of the Court of Appeal, governed exclusively by the Court of Appeal Rules. Once it is any challenge regarding its form, substance, or timeliness falls strictly under the jurisdiction of the Court of Appeal -not the court that rendered the impugned decision.
This very position was taken by Hon. Ngugi, J. in Sammy Kuria Ndug''u v Samuel Mbugua Ikumbu [202 Il eKLR thus:
"The binding reasoning of the Court of Appeal in the Trimborn Agricultural Engineering Limited Case and the persuasive reasoning of the High Court in the Cosmas Mutiso Muema Case appear self-evidently dispositive of the case. While the High Court is clothed with jurisdiction by section 7 of the Appellate Jurisdiction Act to extend time for a litigant who is desirous of filing a Notice of Appeal to the Court of Appeal for the first time and before he has taken any action at the Court of Appeal, such authority dissipates once the intended Appellant has taken any step at the Court of Appeal. This is so however incompetent the Notice of Appeal filed at the Court of Appeal is. Once a party has filed a Notice of Appeal, the authority to strike it out extend time deem it regular or another action related to it lies with the Court of Appeal not the High Court. ”
The applicant argues that allowing this Honorable Court to pronounce itself on the validity or timeliness of a notice of appeal would effectively be permitting a lower court to usurp the supervisory function of a superior court. That would be a direct affront to the hierarchy of courts and would violate the principle of judicial competence.
The applicant argues that the objection raised by the Respondent before this Honorable Court is procedurally incompetent and improperly placed. The filing of a Notice of Appeal does not trigger any procedural step within the trial court requiring the court''s scrutiny or intervention.
Accordingly, the applicant urges this Honorable Court to find that it lacks jurisdiction to determine the objection raised and to strike it out or disregard it entirely for being improperly before this forum.
On whether this honourable court should be pleased to issue a stay of tee taxation proceedings pending the hearing and determination of the appeal the applicant submits that the only issue warranting an application for stay was the issue of costs.
The subject application was made after service of the respondents'' bill of costs, and therefore the delay was not inordinate as the subject application is ripe after the bill of costs was filed and served.
On whether this Honorable court ought to stay the taxation proceedings. The applicant submits that it well within the interest of justice and procedural fairness that this Honorable Court grants a stay of the taxation proceedings pending the hearing and determination of the appeal.
The applicant relies on the principles that a court must consider in an application for stay of proceedings set out in the case of Global Tours and Travels Limited Nairobi Winding Up Cause oe 43 of 2000 cited in Kenya Power & Lighting Company Ltd vs Esther Wanjiru okabi 2014 eKLR. In that case, Ringera J (as he then was) stated as follows: -
"As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice. the sole question is whether it is the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously"
The applicant contends that it would save both this Honorable Court''s time and that of the taxing master if the taxation proceedings are stayed. That a slight variation in the judgement of this Honorable Court by the superior court would render the whole process of taxation and subsequent proceedings redundant.
The applicant relies on the view taken by the learned E.M Muriithi J in the case of Ewaso Ngiro North Development Authority v Apa Insurance Limited (Civil Appeal 58 of 2018) [20241 KEHC 3779 (KLR) (4 April 2024) (Ruling) where n discussing this very issue, he pronounced himself as follows:
"This court is minded that taxation is a legitimate process of Advocates Remuneration Order and the Civil Procedure Rules and the Applicant was duly invited to participate in the consideration of Bill of Costs by filing a replying affidavit, or otherwise challenge the bill of costs. It would, on face value, appear to be prudent for the Applicant to await the conclusion of the taxation proceedings and, if aggrieved, then seek stay of execution pending appeal. But if the appellate court will have made a determination that affects the costs of the suit already taxed, judicial time would have been wasted. I respectfully agree with the Court (Maureen Onyango, J.) in Parick Wa la Kuloba v Director Chie Executive Ocer Ken a Industrial Research & Develo ment Institute (2021) elCLR that "it makes judicial sense to avoid a situation where a taxation will eventually have to be repeated or become redundant depending on the outcome of the appeal. "
The applicant urges that the mandate of this Honorable Court per the provisions of Sections IA and 1B of the Civil Procedure Act is the expedient, efficient and just disposal of disputes. Staying the proceedings will enable this Honorable Court to achieve just that. Should the subject respondents emerge successful in appeal and the superior court uphold the decision of this Honorable Court, the respondents herein will just pick up from where they left off in the taxation proceedings and move to execution of the same. On the flip side, should they be allowed to proceed and there is an overturn of a slight variation of the judgement of 21st November 2024, then the taxation proceedings would be rendered redundant and would have been of no note. This Court should weigh the two scenarios and determine what would serve its overriding objective.
Having stated the above, the applicant submits that on balance of convenience and proportion, the Applicant stands to suffer reasonable prejudice should the orders sought not be granted. Order 42 Rule 6 (2) of the Civil Procedure Rules provides that no order for stay of execution shall be made in regard to a stay of execution unless:-
(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
The applicant argues that this application does not in any way seek to change the status of the occupation and use of the suit property by the respondents, by admission of the respondents, the court indeed allowed the respondents'' appeal and the only issue left is the issue of costs. The applicant does not seek a stay of the above, only the issue of costs as he pursues an appeal of the whole decision, pending the same and even pending the decision by this Honorable Court, the said respondents have always been in possession and use of the suit property, the same will not change pending the outcome of the appeal. On the other side, however, it would be greatly prejudicial to the Applicant should taxation be allowed to conclude and execution of costs proceed, yet there is an active appeal, which appeal may be successful varying the issue of costs with the Applicant having been forced to pay costs, coming again to maybe recover the same. The most prudent cause of action would be to stay the proceedings pending appeal.
The applicant cites the case of RWW v EKW [2019] eKLR, where the court considered the purpose of a stay of execution order pending appeal, in the following words:
"The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. "
The Applicant complied with the legal procedures for appeal and is just exercising their right under Article 50 of the Constitution. To reiterate the prejudice that would be occasioned upon the applicant would not be substantial, and that is not sufficient in this case, the prejudice that would be suffered by the applicant would be irreparable and could not be compensated through damages.
Respondents also filed written submissions. On whether the Applicants have satisfied the legal threshold for the grant of a stay of taxation proceedings, the respondent argues that this application invokes the discretionary jurisdiction of this Honorable Court under Order 42 Rule 6(1) of the Civil Procedure Rules, 2010, The conditions precedent for the grant-of a stay are delineated in Rule 6(2), which provides that:
"No order for stay of execution shall be made under subrule (1) unless (a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and (b) such security as the court orders for the due performance such decree or order as may ultimately be binding on him has been given by applicant
The Respondents acknowledges the well-settled principles governing stay of execution, as articulated in Runda Water Limited & another v Timothy John Nicklin & another [20171 eKLR and Elena D. Korir v Kenyatta University [20121 eKLR, where Justice L Njuguna observed thus;
"For an order of stay of execution to be granted, the court has to be satisfied that the applicant has met the provisions of Order 42 rule 6.”
In the case of Elena D, Korir vs Kenyatta University (2012) eKLR where Justice Nzioki Wamakau had this to say: -
"the application must meet a criteria set out in precedents and the criteria is best captured in the case of Halal & another vs Thornton & Turpin Ltd where the Court of Appeal (Gicheru JA, Chesoni & CockarAg JA) held that
"The High Court''s discretion to order stay of execution of its order or decree is fettered by three conditions, namely: - Sufficient cause, Substantial loss would ensue from a refusal to grant stay, the applicant must furnish security, the application must be made without unreasonable delay."
Further, the respondent draws the attention of this court to the precedent set forth in RWW v EKW [20191 eKLR in which the court emphasized that the primary objective of stay orders is to preserve the subject matter of the appeal so that the Appellant''s right of appeal is not rendered illusory: "The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. "
Given, that the applicant seeks a stay of the taxation of the 1st to 6th Respondents/decree holders'' bill of costs and subsequent proceedings pending the hearing and determination of the appeal. The principles that a court must consider in an application for stay of proceedings are set out in the case of Global Tours and Travels Limited Nairobi Winding Up Cause No. 43 of 2000 cited in Kenya Power & Lighting Company Ltd vs Esther Wanjiru Wokabi 2014 eKLR In that case, Ringera J (as he then was) stated as follows:
"As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice. The sole question is whether it is the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously"
In light of the foregoing precedents the respondents submit that the Applicant must satisfy the well-established tripartite test: demonstrating sufficient cause, establishing that substantial loss will occur in the absence of the orders.
The respondents argue that the judgment delivered on 21st November 2024 conclusively allowed the Respondents'' appeal and dismissed the Applicants claim, save for the issue of costs. The present application does not seek to alter the outcome of that judgment which remains unchallenged in law but seeks instead to delay lawful taxation proceedings flowing from it.
The Applicant''s invocation of stay pending appeal is fundamentally flawed, as no competent appeal exists; the Notice of Appeal was lodged out of time on 6th December 2024, without leave, contrary to Rule 75(2) of the Court of Appeal Rules.
There is no competent appeal before the Court. The Applicant''s Notice of Appeal was lodged on 6th December 2024 which fell outside the 14-day period prescribed for filing such notices under Rule 75(2) of the Court of Appeal Rules. The impugned judgment was delivered on 21st November 2024 meaning that the statutory deadline for filing the Notice of Appeal lapsed on 5th December 2024. There is no evidence that the Applicant ever sought or obtained leave to lodge the notice out of time.
According to the respondent, in the absence of a valid and competent appeal, the present application is devoid of any legal or procedural foundation. The judgment delivered on 21st November 2024 remains intact and unchallenged in law, and the Respondents are fully entitled to proceed with the execution of the consequential orders, including taxation of costs. The current application, premised on an irregular and defective appellate process, is therefore fatally incompetent and an abuse of the court process. The present application is not only devoid of merit but has been brought merely to delay execution of a final and lawful decree. The Applicant has also failed to demonstrate the kind of substantial loss required to warrant the exceptional remedy of stay. Allegations of financial hardship and prejudice are purely speculative and unsupported by evidence.
Ultimately, the respondent submits that the application dated 11th June 2025 is a classic abuse of court process, meant solely to frustrate the Respondents from enjoying the fruits of a lawful judgment. The same ought to be dismissed with costs.
(d) Analysis and Determination.
I have considered the application herein, the rival submissions and do find that the same revolves on an issue that this court has dealt with time and again. Stay of proceedings pending appeal is not a grey matter. The principles that govern stay of execution were laid down in the case of William Odhiambo Ramogi & 3 others v Attorney General & 6 others'' Muslims for Human Rights & 2 others Interested Parties) [20201 eKLR cited with approval in Mbiti & another v Thome & another Civil Appeal EOIO of 2024 2024 KEHC 5441 where the court stated:-
"A scan of our decisional law reveals that our Courts have established the following principle’s for the grant of stay of proceedings pending the hearing and determination of an appeal over an interlocutory application to a higher Court.: a. First, there must be an appeal pending before the higher Court b. Second, where such stay is sought in the Court hearing the case as opposed to the higher Court to which the Appeal has been filed and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher Court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the Court to which an appeal is preferred because such a Court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly c. Third, the Applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable d...Fourth, the Applicant must demonstrate that the Appeal would be rendered nugatory if the stay of proceedings is not granted e. Fifth, the Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; and f. Sixth, the Applicant must demonstrate that the application for stay was filed expeditiously and without delay. "
The first issue raised by the parties is whether there is a valid notice of appeal filed in this matter. It is evident that the notice of Appeal was filed on the 6th of December 2024 whereas the judgment was delivered on the 22nd November 2024. It is clear that the notice of appeal was filed out of time. The respondent argues that no competent appeal exists as the notice of appeal was lodged out of time without leave of the court contrary to rule 75(2) of the Court of Appeal Rules.
On this issue, I do hold that though the notice was filed out of time, I have no jurisdiction to hold that the notice of appeal is invalid as the same rests with the court of appeal of Kenya. I agree with the holding by Ngugi J In Sammy Kuria Ndung’u v Samuel Mbugua Ikumbu(2021) Eklr that once a party has filed a notice of appeal, the authority to strike it out, or extend time, deem it regular or any another action related to it lies with the Court of Appeal not in the High Court. Pronouncing myself on the validity of the notice of appeal will be usurping the supervisory powers of the Court of Appeal. This court holds that upon delivery of judgment, it becomes functus officio on the merits in the case and cannot revisit the matter save only on stay of execution pending appeal. The upshot of the above is that there is an appeal pending.
One of the cardinal issues to be considered on grant of stay of proceedings pending appeal is the issue of delay. There should be no inordinate delay which can be deduced from the facts of the case. In this matter, the judgment was delivered on the 21st of November 2024, the notice of appeal was filed on 6th December 2024. The bill of costs was filed on the 20th of May 2025 whereas the application to stay proceedings was filed on the 11th June 2025. I do find that time starts running when the bill of costs was filed and therefore it is evident that the applicant took 22 days to file the application. This was not inordinate delay. The application was filed expeditiously and without delay.
The applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable. The applicant has not annexed the Memorandum of appeal to assist the court to determine whether the appeal is arguable.
The applicant must further demonstrate that the appeal shall be rendered nugatory if stay of proceedings is not granted. The applicant argues that it would save the time of the court and the taxing master if the taxation is stayed. I do agree with the applicant that if taxation proceeds and the appeal is later allowed, it will amount to a waste of judicial time. However, I add that if the taxation is stayed and the appeal is later is dismissed, then the taxation would have been delayed. Balancing the two issues, I do find that it would be prudent to save judicial time and mitigate the costs that are likely to be suffered by the respondent with security for costs.
The upshot of the above is that I do grant stay of taxation pending appeal on condition that the applicant deposits within 20 days, Ksh 500,000 as security for costs in an interest earning account to be opened in the names of both counsel for the parties, in a reputable bank in Kenya. Failure of which, taxation to proceed.
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