1. Before the Court is the Notice of Motion dated 16th September 2025 brought by the Petitioner/Applicant, Charpenel Enterprises Limited, seeking, inter alia, a stay of execution of the warrants of attachment and sale issued against its motor vehicles, setting aside of the said warrants and the certificate of costs, and consequential orders.
2. The application is supported by the affidavit of Peter Karuga Kariuki, a director of the Applicant. The Applicant contends that the execution process was irregular, that the Petition had been instituted in the public interest, and that the dispute giving rise to the Petition had long been mutually resolved between the parties.
3. The application is opposed through the Replying Affidavit of Farida K. Jadi, learned counsel for the Respondents, sworn on 24th September 2025.
4. I have considered the application, the affidavits on record and the annexures thereto. The record shows that Petition No. 63 of 2014 formed part of a series of petitions challenging the constitutionality of the Kwale County Finance Act, 2014. The Petition was subsequently consolidated with Petition Nos. 39, 45 and 61 of 2014 and determined together.
5. The consolidated petitions were dismissed and costs awarded to the Respondent County Government. Thereafter, the Respondents filed a Bill of Costs which was taxed at Kshs. 185,898.33. A certificate of taxation and decree were subsequently issued.
6. The Respondents thereafter commenced execution proceedings and obtained warrants of attachment against the Applicant's movable property in satisfaction of the taxed costs together with accrued interest and execution charges.
7. Aggrieved by the said execution, the Applicant filed the present application. Having considered the pleadings on record, the following issues arise for determination:
i. Whether the Applicant has established sufficient grounds for a stay of execution and setting aside of the warrants of attachment and sale.
ii. Whether the Applicant can challenge the taxed costs and certificate of costs through the present application.
iii. Whether the public interest nature of the Petition justifies interference with the costs order.
iv. Who should bear the costs of the application.
Analysis and Determination
Whether the Applicant has established sufficient grounds for a stay of execution and setting aside of the warrants
8. The Applicant's principal complaint is that the dispute that gave rise to the Petition had been resolved long ago with no orders as to costs and that the execution process is therefore unjustified. It further contends that the warrants were obtained without proper basis and that the Respondents should not be permitted to execute against its property.
9. The Respondents, on the other hand, maintain that the Petition was dismissed with costs; that the Bill of Costs was taxed; that a certificate of costs was issued; and that no challenge has ever been mounted against either the taxation or the decree.
10. The law is settled that a successful litigant is entitled to enjoy the fruits of his judgment. In Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR), the Court observed that:
“The ordinary principle is that a successful party is entitled to the fruits of his judgment or of any decision of the court giving him success at any stage. That is trite knowledge.
11. Similarly, in Samvir Trustee Limited V Guardian Bank Limited [2007] Kehc 2438 (KLR) the Court held that:
“I appreciate and understand that the court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgement. It is a fundamental factor to bear in mind that, a successful party is prima facie entitled to the fruits of his judgement, hence the consequence of a judgement is that it has defined the rights of a party with definitive conclusion.”
12. The material before Court demonstrates that a valid decree exists. The certificate of taxation was issued on 17th February 2022 and has not been set aside. The Applicant has not produced any consent, settlement agreement or court order demonstrating that the issue of costs was compromised or extinguished. The Applicant's allegation that the dispute had been resolved is therefore unsupported by any evidence capable of displacing the decree on record.
13. Further, no evidence has been presented showing that the execution process itself was irregular or unlawful. In the circumstances, I find no basis upon which the Court can interfere with the Respondents' right to execute a valid decree.
Whether the Applicant can challenge the taxed costs and certificate of costs through the present application
14. The procedure for challenging taxation is expressly provided under Paragraph 11 of the Advocates Remuneration Order. A party dissatisfied with taxation must first object before the taxing officer and thereafter file a reference before a Judge.
15. The Court of Appeal in Speaker of the National Assembly v Karume [1992] KECA 42 (KLR) held that:
“In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”
16. Likewise, in Twiga Motors Limited v Dalmas Otieno Onyango [2015] KEHC 8106 (KLR) the Court reaffirmed that a challenge to taxation can only be pursued through the procedure prescribed under Paragraph 11 of the Advocates Remuneration Order.
17. The Applicant has not demonstrated that it filed any objection before the taxing officer or any reference challenging the taxation. Moreover, Section 51(2) of the Advocates Act recognizes a certificate of taxation as final unless it is set aside or altered by the Court.
18. The present application is therefore an impermissible collateral attack on a certificate of taxation that remains valid and binding. The Court cannot reopen taxation proceedings through an application for stay of execution.
Whether the public interest nature of the Petition justifies interference with the costs order
19. The Applicant submits that the Petition was instituted in the public interest and that costs ought not to have been awarded against it.
20. There is no dispute that costs are discretionary. Under Section 27(1) of the Civil Procedure Act, costs are in the discretion of the Court, although ordinarily costs follow the event. In Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR) the Supreme Court held that the discretion on costs must be exercised judicially and on sound principles.
21. I am aware that in constitutional and public interest litigation courts may, in appropriate cases, direct that each party bears its own costs. However, the question before this Court is not whether costs ought to have been awarded in the original Petition. That issue was conclusively determined when the Petition was dismissed and costs awarded to the Respondents.
22. No appeal, review or other challenge to that order has been demonstrated. I cannot, under the guise of an execution application, revisit or overturn a final order on costs made years earlier.
23. In my view, the Applicant's grievance is not with the execution process but with the award and taxation of costs. The Applicant is effectively inviting this Court to revisit and overturn decisions that were made during the determination of the Petition and the subsequent taxation proceedings. This Court cannot exercise appellate jurisdiction over its own judgment or over a certificate of costs that has neither been reviewed nor set aside.
24. The public interest character of the Petition therefore does not provide a basis for setting aside the decree or staying execution.
Costs of the application
25. Under Section 27 of the Civil Procedure Act, costs follow the event unless the Court, for good reason, orders otherwise. The Respondents have successfully opposed the application and no exceptional circumstances have been shown to justify departure from the general rule.
26. Accordingly, the court makes the following orders:
a. The Notice of Motion dated 16th September 2025 is devoid of merit and is hereby dismissed.
b. The Applicant shall bear the costs of the application.
c. File closed
d. Either party is at liberty to apply
Dated and delivered virtually at Mombasa this 6th day of August, 2026.
………………………………
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of: -
N/A by the Petitioner
Ms. Mwangi Advocate for the Respondent
Ms. Salwa, Court Assistant
2. The application is supported by the affidavit of Peter Karuga Kariuki, a director of the Applicant. The Applicant contends that the execution process was irregular, that the Petition had been instituted in the public interest, and that the dispute giving rise to the Petition had long been mutually resolved between the parties.
3. The application is opposed through the Replying Affidavit of Farida K. Jadi, learned counsel for the Respondents, sworn on 24th September 2025.
4. I have considered the application, the affidavits on record and the annexures thereto. The record shows that Petition No. 63 of 2014 formed part of a series of petitions challenging the constitutionality of the Kwale County Finance Act, 2014. The Petition was subsequently consolidated with Petition Nos. 39, 45 and 61 of 2014 and determined together.
5. The consolidated petitions were dismissed and costs awarded to the Respondent County Government. Thereafter, the Respondents filed a Bill of Costs which was taxed at Kshs. 185,898.33. A certificate of taxation and decree were subsequently issued.
6. The Respondents thereafter commenced execution proceedings and obtained warrants of attachment against the Applicant's movable property in satisfaction of the taxed costs together with accrued interest and execution charges.
7. Aggrieved by the said execution, the Applicant filed the present application. Having considered the pleadings on record, the following issues arise for determination:
i. Whether the Applicant has established sufficient grounds for a stay of execution and setting aside of the warrants of attachment and sale.
ii. Whether the Applicant can challenge the taxed costs and certificate of costs through the present application.
iii. Whether the public interest nature of the Petition justifies interference with the costs order.
iv. Who should bear the costs of the application.
Analysis and Determination
Whether the Applicant has established sufficient grounds for a stay of execution and setting aside of the warrants
8. The Applicant's principal complaint is that the dispute that gave rise to the Petition had been resolved long ago with no orders as to costs and that the execution process is therefore unjustified. It further contends that the warrants were obtained without proper basis and that the Respondents should not be permitted to execute against its property.
9. The Respondents, on the other hand, maintain that the Petition was dismissed with costs; that the Bill of Costs was taxed; that a certificate of costs was issued; and that no challenge has ever been mounted against either the taxation or the decree.
10. The law is settled that a successful litigant is entitled to enjoy the fruits of his judgment. In Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR), the Court observed that:
“The ordinary principle is that a successful party is entitled to the fruits of his judgment or of any decision of the court giving him success at any stage. That is trite knowledge.
11. Similarly, in Samvir Trustee Limited V Guardian Bank Limited [2007] Kehc 2438 (KLR) the Court held that:
“I appreciate and understand that the court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgement. It is a fundamental factor to bear in mind that, a successful party is prima facie entitled to the fruits of his judgement, hence the consequence of a judgement is that it has defined the rights of a party with definitive conclusion.”
12. The material before Court demonstrates that a valid decree exists. The certificate of taxation was issued on 17th February 2022 and has not been set aside. The Applicant has not produced any consent, settlement agreement or court order demonstrating that the issue of costs was compromised or extinguished. The Applicant's allegation that the dispute had been resolved is therefore unsupported by any evidence capable of displacing the decree on record.
13. Further, no evidence has been presented showing that the execution process itself was irregular or unlawful. In the circumstances, I find no basis upon which the Court can interfere with the Respondents' right to execute a valid decree.
Whether the Applicant can challenge the taxed costs and certificate of costs through the present application
14. The procedure for challenging taxation is expressly provided under Paragraph 11 of the Advocates Remuneration Order. A party dissatisfied with taxation must first object before the taxing officer and thereafter file a reference before a Judge.
15. The Court of Appeal in Speaker of the National Assembly v Karume [1992] KECA 42 (KLR) held that:
“In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”
16. Likewise, in Twiga Motors Limited v Dalmas Otieno Onyango [2015] KEHC 8106 (KLR) the Court reaffirmed that a challenge to taxation can only be pursued through the procedure prescribed under Paragraph 11 of the Advocates Remuneration Order.
17. The Applicant has not demonstrated that it filed any objection before the taxing officer or any reference challenging the taxation. Moreover, Section 51(2) of the Advocates Act recognizes a certificate of taxation as final unless it is set aside or altered by the Court.
18. The present application is therefore an impermissible collateral attack on a certificate of taxation that remains valid and binding. The Court cannot reopen taxation proceedings through an application for stay of execution.
Whether the public interest nature of the Petition justifies interference with the costs order
19. The Applicant submits that the Petition was instituted in the public interest and that costs ought not to have been awarded against it.
20. There is no dispute that costs are discretionary. Under Section 27(1) of the Civil Procedure Act, costs are in the discretion of the Court, although ordinarily costs follow the event. In Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR) the Supreme Court held that the discretion on costs must be exercised judicially and on sound principles.
21. I am aware that in constitutional and public interest litigation courts may, in appropriate cases, direct that each party bears its own costs. However, the question before this Court is not whether costs ought to have been awarded in the original Petition. That issue was conclusively determined when the Petition was dismissed and costs awarded to the Respondents.
22. No appeal, review or other challenge to that order has been demonstrated. I cannot, under the guise of an execution application, revisit or overturn a final order on costs made years earlier.
23. In my view, the Applicant's grievance is not with the execution process but with the award and taxation of costs. The Applicant is effectively inviting this Court to revisit and overturn decisions that were made during the determination of the Petition and the subsequent taxation proceedings. This Court cannot exercise appellate jurisdiction over its own judgment or over a certificate of costs that has neither been reviewed nor set aside.
24. The public interest character of the Petition therefore does not provide a basis for setting aside the decree or staying execution.
Costs of the application
25. Under Section 27 of the Civil Procedure Act, costs follow the event unless the Court, for good reason, orders otherwise. The Respondents have successfully opposed the application and no exceptional circumstances have been shown to justify departure from the general rule.
26. Accordingly, the court makes the following orders:
a. The Notice of Motion dated 16th September 2025 is devoid of merit and is hereby dismissed.
b. The Applicant shall bear the costs of the application.
c. File closed
d. Either party is at liberty to apply
Dated and delivered virtually at Mombasa this 6th day of August, 2026.
………………………………
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of: -
N/A by the Petitioner
Ms. Mwangi Advocate for the Respondent
Ms. Salwa, Court Assistant