A. THE APPLICATION DATED 23RD FEBRUARY, 2026.
1. The Advocate’s notice of motion dated 23rd February, 2026 is expressed to be brought under Order 51 Rule 1 and Order 42 Rule 6 of the Civil Procedure Rules and seeks the following orders:
a. [Spent].
b. THAT the Honourable Court be pleased to issue an order of stay of proceedings in this case pending the hearing and determination of an appeal filed by Applicant herein.
c. THAT the costs of this application do abide the outcome of the appeal.
2. The grounds upon which the application is premised are that the Advocate has already lodged a notice of appeal to the Court of Appeal pursuant to Rule 77 of the Court of Appeal Rules, thereby signifying an intention to challenge the decision of this Court.
3. It is further contended that the intended appeal raises substantial questions, particularly on the issue of jurisdiction, with the Advocate asserting that this Court failed to uphold the doctrine of exhaustion as provided under Section 53(1) of the Advocates Act.
4. The Advocate proffers the position that although a memorandum of appeal has been prepared and presented, the appeal has not been admitted owing to the absence of the typed proceedings.
5. The Advocate further contends that unless an order for stay of further proceedings is granted, the ongoing taxation and/or assessment of the Advocate–Client bill of costs will proceed to conclusion, thereby rendering the intended appeal nugatory. He therefore urges that the interests of justice warrant the preservation of the status quo pending the hearing and determination of the intended appeal.
B. THE ADVOCATE’S SUPPORTING AFFIDAVIT.
6. In his supporting affidavit sworn on 4th March, 2026, the Advocate deposes that the instant suit was instituted against him by the Client on 21st June, 2024 and that the matter proceeded partly before my sister Shariff J., before being placed before my brother Mwamuye J. for hearing and determination during the Judicial Service Week. He states that on 3rd December, 2024, the matter came up before Mwamuye J., who, after hearing the parties, fixed it for ruling on 24th January, 2025.
7. The Advocate further deposes that on 24th January, 2025, the matter was mentioned before my brother Judge, who adjourned the delivery of the ruling to 30th January, 2025 and subsequently delivered the same on 3rd February, 2025, indicating that a copy of the same would be availed to the parties during the course of that day.
8. It is the Advocate’s contention that on 12th February, 2025, he lodged a notice of appeal and simultaneously requested for copies of the proceedings, ruling and order to enable him file a substantive appeal. He avers that despite several visits to the Kisumu High Court registry, he was informed that the requested documents could not be supplied as the trial file, which had been transmitted to Nairobi, had not been returned to the registry.
9. The Advocate further contends that owing to the inability to obtain the requisite documents, he attempted to compile the record of appeal using the documents in his possession, but the Court of Appeal declined to accept the same on the basis that it was incomplete for want of the proceedings, ruling and order.
10. The Advocate further deposes that on 10th April 2025, he wrote to the registry seeking clarification on the delay in supply of the ruling and the status of the requested documents. He also states that on 25th August, 2025, the Client filed an application seeking clarification on the whereabouts of the trial file and subsequently moved the Court for reconstruction of the same.
11. The Advocate further avers that on 16th February, 2026, he received submissions from the Client in respect of the bill of costs that he (the Advocate) had filed, which, in his view, demonstrated an intention to proceed with the matter notwithstanding the intended appeal. He therefore contends that having lodged a notice of appeal within time and being unable to file the substantive appeal due to the non-availability of the court record, it is necessary that the proceedings herein be stayed pending the hearing and determination of the intended appeal.
12. The Advocate further submits that the intended appeal raises, inter alia, issues of jurisdiction and the doctrine of exhaustion under Section 53(1) of the Advocates Act, and that continuation of the proceedings before this Court would render his intended appeal nugatory.
C. THE CLIENT’S REPLYING AFFIDAVIT.
13. The Advocate’s motion is opposed and in his replying affidavit sworn on 9th March 2026, the Client confirms that the subject ruling was delivered on 3rd February, 2025 in respect of his interlocutory application dated 20th June, 2024, which inter alia compelled the Advocate to file his Advocate–Client bill of costs for taxation before the Taxing Officer. He avers that in compliance with the said order, the Advocate submitted to the jurisdiction of the Taxing Officer and filed an Advocate–Client bill of costs dated 28th March, 2025.
14. The Client further deposes that the present dispute is rooted in the Advocate’s handling of funds arising from CMCC No. 437 of 2018, where party and party costs were agreed upon by consent in the sum of Ksh. 500,000/- all-inclusive. He contends that despite this agreement, and after receiving decretal sums on his behalf, the Advocate proceeded to claim exorbitant Advocate–Client fees amounting to Ksh.3,951,510.80/- together with a further sum of Ksh.1,422,554.90/- allegedly as interest, and unilaterally deducted an aggregate sum of Ksh.5,374,064.70/- from monies held in trust for him without issuing a statutory notice.
15. The Client asserts that the Advocate is only entitled to Ksh.693,703/- after taking into account the agreed party and party costs and deposits allegedly received, and therefore maintains that the Advocate is unlawfully withholding Ksh.4,680,317.70/-.
16. The Client further avers that the Advocate, having filed his bill of costs, submitted himself to the jurisdiction of the Taxing Officer and is therefore estopped from seeking to stay or otherwise delay the taxation process, which remains the proper forum for determination of his entitlement.
17. The Client contends that the application is an afterthought, has been brought after inordinate delay of over one year from the ruling of 3rd February, 2025, and is intended to frustrate the taxation process and enable the Advocate to continue holding onto the disputed funds. He also takes the view that the application is incompetent for failure to provide security for the sum of Ksh.4,680,317.70/-.
18. The Client disputes the Advocate’s position regarding the intended appeal, stating that a record of appeal is the proper mode of instituting an appeal to the Court of Appeal and that any missing proceedings may be filed later through a supplementary record, and therefore the absence of proceedings cannot justify halting proceedings. He also contends that the Court ought not to be drawn into considerations of arguability of the intended appeal at this stage, as that is not a relevant factor in the determination of the application for stay.
19. Finally, the Client accuses the Advocate of abusing the process of the Court by engaging in delaying tactics to avoid taxation of his bill of costs while continuing to hold funds allegedly due to him. He maintains that no prejudice or substantial loss has been demonstrated by the Advocate, and that the application is made in bad faith, is an abuse of the court process, is unmeritorious and should be dismissed. He urges that, in any event, the Advocate should be ordered to deposit the disputed sum of Ksh. 4,680,317.70/- in Court or in a joint interest-earning account to secure his interests pending determination of the dispute.
D. THE ADVOCATE’S SUBMISSIONS IN SUPPORT OF THE MOTION.
20. The Advocate, in his oral submissions, states that the ruling in respect of which the present application arises was delivered on 3rd February, 2025, following which the he immediately filed a notice of appeal and requested for copies of the proceedings to facilitate the preparation of the record of appeal. He contends that the delay in filing the record of appeal has been occasioned by the time taken to obtain the said proceedings.
21. The Advocate further states that the intended appeal principally challenges the jurisdiction of the trial court, which he submits is a fundamental issue warranting determination on appeal. He submits that the present application, seeks, inter alia, an order that the impugned decision be uploaded onto the Case Tracking System to enable the Advocate access it for purposes of advancing the appeal.
22. The Advocate additionally urges the Court to stay the proceedings, or execution thereof, on the basis that the trial court acted without jurisdiction, and that jurisdiction being a threshold issue, the continuation of the proceedings would be prejudicial to the intended appeal. He further informs the Court that the record of appeal shall be filed expeditiously once the proceedings are availed, and that the he is willing to furnish such security as the Court may deem appropriate.
23. Finally, the Advocate states that the sum in dispute was deducted in respect of professional services rendered in a number of matters in which he acted, and that the same was therefore properly accounted for in the course of those engagements.
E. THE CLIENT’S SUBMISSIONS IN OPPOSITION TO THE ADVOCATE’S MOTION.
24. On his part, the Client submits that the dispute arises from taxation proceedings in CMCC No. 437 of 2018, which were conducted pursuant to the order of Mwamuye, J. and in respect of which party and party costs were agreed upon by consent on 12th March, 2020 in the sum of Ksh.500,000/-. He states that there is a valid consent on record, annexed to the pleadings, and further contends that the applicable legal framework allows for an increase of the taxed amount by one half.
25. The Client further submits that the Advocate wrongfully hived off Ksh.5,374,064.70/- from monies received, which he claimed included his interest, and therefore acted improperly in retaining the said sums.
26. The Client argues that under Order 42 Rule 6 of the Civil Procedure Rules, an Applicant in an application for stay of execution must demonstrate timeliness, sufficient cause, absence of substantial loss, provision of security and utmost good faith. In this regard, the Client contends that no application for stay was made on the date the ruling was delivered.
27. The Client further submits that the Advocate is barred by the doctrine of estoppel from challenging the jurisdiction of the court to tax his own bill of costs, having participated fully in the taxation process. He states that on 3rd February, 2025, the Advocate effectively conceded jurisdiction by requesting for 60 days to file his bill of costs, and subsequently proceeded to file the bill on 18th March, 2025, continued to appear before the Deputy Registrar and even amended his bill of costs, thereby affirming the court process.
28. The Client further submits that the intended appeal cannot be rendered nugatory in the manner alleged, and that in any event, this Court lacks jurisdiction to make such a determination, it being a matter reserved for the Court of Appeal.
29. The Client also points out that the Advocate has not demonstrated any substantial loss that he stands to suffer if the orders sought are not granted, which he considers a fatal omission in the application. While the Advocate indicates willingness to furnish security, the Client proposes that the same be secured by depositing Ksh.4,680,317/- in a joint account in the names of both parties within 14 days.
30. Finally, the Client submits that the application is merely calculated to delay justice and unjustly continue holding the Client’s money, noting further that the duration of the intended appeal is uncertain and that in any event, the practice by the Complaints Commission is to refer Advocate–Client costs matters to the Deputy Registrar for determination.
F. THE ADVOCATE’S SUBMISSIONS IN REJOINDER.
31. The Advocate, in his rejoinder, submits that the bill of costs in the original matter was not taxed but was instead agreed upon by the parties, and therefore the basis upon which the Client challenges the proceedings is misconceived.
32. The Advocate further states that the present application was filed expeditiously, but that the delay in progressing the appeal was occasioned by the unavailability of proceedings, which were only furnished to the Applicant on 11th March, 2026.
33. The Advocate reiterates that the bill of costs was filed in compliance with the order of the Court once the necessary documents were availed, and maintains that such compliance did not amount to submitting to the Court’s jurisdiction and that he continues to challenge the jurisdiction of the Court.
34. The Advocate further submits that the issue of substantial loss is not applicable in the present circumstances, where the central question on appeal concerns jurisdiction, which he contends is a threshold issue overriding other considerations.
G. THE RULING DELIVERED ON 3RD FEBRUARY, 2025.
35. To put this matter into perspective, a brief history is apt.
36. By the ruling rendered on 3rd February, 2025, my brother Mwamuye J. determined the Client’s application dated 20th June, 2024 that had sought orders compelling the Advocate to deposit in court the sum of Ksh.4,626,064.70/-, to file an Advocate–Client bill of costs in respect of services rendered in CMCC No. 437 of 2018, and to render a cash account of monies received and held on behalf of the Applicant.
37. The application was resisted by way of a preliminary objection on the ground that the dispute concerned professional conduct and ought to have been referred to the Advocates Complaints Commission under Section 53(4) of the Advocates Act.
38. In resolving the preliminary objection, the Court held that Section 53(4) of the Advocates Act does not oust the jurisdiction of the High Court in matters concerning Advocate–Client accounts, fees and recovery of Client funds. It found that the dispute before it was essentially civil and financial in nature, rather than disciplinary, and thus properly fell within the Court’s jurisdiction under Order 52 of the Civil Procedure Rules, which empowers the Court to order delivery of accounts, taxation of costs and payment or release of Client funds held by an Advocate.
39. On the merits, the Court emphasized that an Advocate is under a legal obligation to render accounts and to file an Advocate–Client bill of costs for taxation upon termination of the retainer. It found that the Advocate’s failure to file such a bill, while continuing to withhold substantial client funds, was unjustified.
40. Consequently, the Court held that the Advocate must comply with the Advocates (Remuneration) Order, 2014, particularly Schedule 7, by filing the bill for taxation before the Deputy Registrar.
41. The Court further addressed the issue of the Advocate’s lien, holding that such lien is merely possessory and limited to securing payment of properly ascertained fees. It directed that the sum of Ksh.4,626,064.70/- held by the Advocate be applied first towards satisfaction of the taxed costs, with any balance thereafter being released to the Client, there being no legal basis for retention of funds beyond the Advocate’s legitimate entitlement.
42. Accordingly, the Court allowed the application, ordered the Advocate to file and prosecute the Advocate–Client bill of costs for taxation, directed that the taxed amount be deducted from the funds held, and that the remainder be released to the Client, with no order as to costs.
H. ISSUES FOR DETERMINATION.
43. Now back to the motion before me, the two parties rely on the positions proffered in their respective affidavits and submissions.
44. From the application, the affidavits on record and the rival submissions, the following two issues arise for determination:
a. Whether the Advocate has met the threshold for grant of an order of stay of proceedings pending appeal.
b. Who should bear the costs of the application.
I. ANALYSIS AND FINDINGS.
45. I will proceed to address and determine the two issues.
46. The first issue for determination is whether the Advocate has satisfied the legal threshold for the grant of an order of stay of proceedings pending appeal.
47. The Court is mindful that an order staying proceedings is an exceptional remedy, since it has the effect of halting the progress of a matter before a court or tribunal that is otherwise properly seized of jurisdiction. It therefore ought not to be granted lightly, but only in circumstances that clearly demonstrate that continuation of the proceedings would occasion injustice or render an intended appeal nugatory.
48. The legal principles governing the grant of stay of proceedings are well settled. Although the Civil Procedure Rules do not expressly set out detailed criteria for stay of proceedings in the same manner as stay of execution, courts have consistently applied analogous principles grounded in judicial discretion and the overarching interests of justice. The discretion must be exercised judiciously, not arbitrarily, and with due regard to the competing rights of the parties and the need to ensure expeditious disposal of litigation.
49. In the case of Butt v Rent Restriction Tribunal [1982] KLR 417, the Court of Appeal emphasized the careful exercise of discretion in interlocutory applications, stating that:
“The power of the court to grant or refuse an application for stay is discretionary, and the discretion should be exercised in such a way as not to prevent an appeal.”
50. My understanding of what this authority underscores is that while the right of appeal must be preserved, it does not automatically entitle a party to halt proceedings in the lower court.
51. Further, in Madhupaper International Limited v Kerr [1985] KLR 840, the Court of Appeal cautioned against granting orders that unnecessarily obstruct the course of justice or delay the resolution of disputes. The Court observed that interlocutory relief should not be used in a manner that paralyses proceedings unless there is clear justification founded on substantial risk of injustice or irreparable prejudice.
52. Against that legal backdrop, the Advocate’s application is principally anchored on the assertion that he has lodged a notice of appeal challenging, among other things, the jurisdiction of this Court, and that unless proceedings are stayed, the taxation process currently underway will render his intended appeal nugatory. He also places reliance on alleged difficulties in obtaining typed proceedings, which he argues has impeded the preparation of a complete record of appeal.
53. A significant plank of the Client’s opposition is that the Advocate, by filing his bill of costs and actively participating in taxation proceedings, has submitted to the jurisdiction of this Court and is therefore estopped from challenging it. While this argument was strongly advanced, the Court must restate the legal position on jurisdiction, which is settled beyond peradventure.
54. Jurisdiction is not a matter that can be conferred by the consent, conduct, acquiescence or participation of parties. It is a creature of the Constitution or statute, and a court either has it or it does not. The Court of Appeal in the celebrated case of Motor Vessel Lillian “S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 made this principle unequivocally clear when it stated:
“Jurisdiction is everything. Without it, a court has no power to make one more step… where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence.”
55. It follows therefore that the mere fact that a party has participated in proceedings, filed pleading, or complied with court directions does not, in law, confer jurisdiction upon a court that is otherwise lacking it. Equally, participation in proceedings does not necessarily preclude a party from raising a jurisdictional challenge at an appropriate stage.
56. However, in the present case, the question is not abstract. The issue of jurisdiction was already directly addressed and determined in the ruling of 3rd February, 2025, where this Court (Mwamuye J.) affirmed its competence to entertain and determine Advocate–Client fee disputes under the applicable legal framework.
57. Although a further challenge can only be addressed by the Court of Appeal, the Advocate has not placed before this Court any new or compelling material demonstrating that the earlier determination on jurisdiction is prima facie erroneous or that continuation of the taxation process is fundamentally without legal foundation. In the absence of such material, the Court is not persuaded that the jurisdictional argument advanced is sufficient to justify the drastic remedy of staying proceedings that are already lawfully underway pursuant to a subsisting court order.
58. The Court further addresses the Advocate’s contention that continuation of taxation proceedings will render the intended appeal nugatory. With respect, this argument does not meet the legal threshold required for stay of proceedings. Taxation of costs is a judicial process whose primary function is to assess and quantify costs payable between parties. It does not constitute execution or enforcement of a decree in the strict sense, but rather a preliminary step in the ascertainment of liability.
59. A determination by the Taxing Officer, even where adverse to a party, does not extinguish appellate rights. Accordingly, the mere progression of taxation proceedings does not result in irreversible prejudice that cannot be addressed through the appellate process. The apprehension that the appeal will be rendered nugatory is therefore speculative rather than demonstrable.
60. The Court also takes cognizance of the fact that taxation proceedings are a specialized statutory mechanism designed to facilitate efficient resolution of disputes relating to legal fees. To halt such proceedings without compelling justification would not only delay the determination of rights between the parties but would also undermine the objective of expeditious resolution of disputes within the civil justice system.
61. On the issue of delay and inability to obtain proceedings, while the Court is not unsympathetic to logistical challenges that may arise in the preparation of an appeal record, such challenges do not, in themselves, justify halting ongoing proceedings before a competent court. The appellate framework provides alternative remedies, including the filing of records with leave to supplement, and does not require paralysis of lower court proceedings as a precondition for appeal.
62. In the circumstances of this case, the Court is not persuaded that the Advocate has demonstrated sufficient cause, real prejudice or any exceptional circumstances warranting the exercise of discretion in his favour. The threshold for the grant of stay of proceedings, which is intentionally high due to its disruptive effect on judicial process, has not been met.
63. Accordingly, the Court finds that the Advocate has failed to satisfy the requirements for the grant of stay of proceedings. The first issue is therefore determined in favour of the Client and against the Advocate.
64. The second issue is a determination of the costs of this application.
65. The starting point is Section 27(1) of the Civil Procedure Act, which provides that:
“Costs of and incidental to all suits shall be in the discretion of the Court or Judge, and the Court or Judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid…”
66. The general principle under Section 27 is that costs follow the event. However, the provision also vests the Court with full discretion to depart from that principle depending on the circumstances of the case, the conduct of the parties and the interests of justice.
67. The Court of Appeal in Supermarine Handling Services Ltd v Kenya Revenue Authority [2010] eKLR stated:
“The award of costs is a matter of judicial discretion which must be exercised judicially. The basic rule on attribution of costs is that costs follow the event, but the Court may for good reason depart from it.”
68. Likewise, in Morgan Air Cargo Limited v Everest Enterprises Limited [2014] eKLR, the Court reiterated that:
“The discretion to award costs is not to be exercised arbitrarily but on the basis of reason, fairness and justice.”
69. In the present matter, although the Advocate has not succeeded in the application, the Court is equally mindful that the dispute between the parties arises from an Advocate–Client relationship dispute already before the Taxing Officer and now intertwined with interlocutory appellate proceedings.
70. Awarding costs to either party at this stage would only serve to escalate the acrimony and further protract a dispute that is already substantially before the Taxing Officer for resolution on merits. The Court is of the view that such escalation would not serve the overriding objective of the Civil Procedure Act and the interests of justice.
71. In the circumstances, and in exercise of discretion under Section 27 of the Civil Procedure Act, the most appropriate order is that each party bears its own costs of the application.
J. DISPOSITION.
72. The application dated 23rd February, 2026 is hereby dismissed with no order as to costs.
73. This file shall be placed before the Deputy Registrar for further proceedings on 27th April, 2026, as earlier scheduled.
DELIVERED (virtually), DATED & SIGNED this 23rd day of April, 2026.
JOE M. OMIDO
JUDGE
FOR ADVOCATE: Mr. Okoth.
FOR CLIENT: Mr. Tiego.
COURT ASSISTANT: Mr. Juma.
1. The Advocate’s notice of motion dated 23rd February, 2026 is expressed to be brought under Order 51 Rule 1 and Order 42 Rule 6 of the Civil Procedure Rules and seeks the following orders:
a. [Spent].
b. THAT the Honourable Court be pleased to issue an order of stay of proceedings in this case pending the hearing and determination of an appeal filed by Applicant herein.
c. THAT the costs of this application do abide the outcome of the appeal.
2. The grounds upon which the application is premised are that the Advocate has already lodged a notice of appeal to the Court of Appeal pursuant to Rule 77 of the Court of Appeal Rules, thereby signifying an intention to challenge the decision of this Court.
3. It is further contended that the intended appeal raises substantial questions, particularly on the issue of jurisdiction, with the Advocate asserting that this Court failed to uphold the doctrine of exhaustion as provided under Section 53(1) of the Advocates Act.
4. The Advocate proffers the position that although a memorandum of appeal has been prepared and presented, the appeal has not been admitted owing to the absence of the typed proceedings.
5. The Advocate further contends that unless an order for stay of further proceedings is granted, the ongoing taxation and/or assessment of the Advocate–Client bill of costs will proceed to conclusion, thereby rendering the intended appeal nugatory. He therefore urges that the interests of justice warrant the preservation of the status quo pending the hearing and determination of the intended appeal.
B. THE ADVOCATE’S SUPPORTING AFFIDAVIT.
6. In his supporting affidavit sworn on 4th March, 2026, the Advocate deposes that the instant suit was instituted against him by the Client on 21st June, 2024 and that the matter proceeded partly before my sister Shariff J., before being placed before my brother Mwamuye J. for hearing and determination during the Judicial Service Week. He states that on 3rd December, 2024, the matter came up before Mwamuye J., who, after hearing the parties, fixed it for ruling on 24th January, 2025.
7. The Advocate further deposes that on 24th January, 2025, the matter was mentioned before my brother Judge, who adjourned the delivery of the ruling to 30th January, 2025 and subsequently delivered the same on 3rd February, 2025, indicating that a copy of the same would be availed to the parties during the course of that day.
8. It is the Advocate’s contention that on 12th February, 2025, he lodged a notice of appeal and simultaneously requested for copies of the proceedings, ruling and order to enable him file a substantive appeal. He avers that despite several visits to the Kisumu High Court registry, he was informed that the requested documents could not be supplied as the trial file, which had been transmitted to Nairobi, had not been returned to the registry.
9. The Advocate further contends that owing to the inability to obtain the requisite documents, he attempted to compile the record of appeal using the documents in his possession, but the Court of Appeal declined to accept the same on the basis that it was incomplete for want of the proceedings, ruling and order.
10. The Advocate further deposes that on 10th April 2025, he wrote to the registry seeking clarification on the delay in supply of the ruling and the status of the requested documents. He also states that on 25th August, 2025, the Client filed an application seeking clarification on the whereabouts of the trial file and subsequently moved the Court for reconstruction of the same.
11. The Advocate further avers that on 16th February, 2026, he received submissions from the Client in respect of the bill of costs that he (the Advocate) had filed, which, in his view, demonstrated an intention to proceed with the matter notwithstanding the intended appeal. He therefore contends that having lodged a notice of appeal within time and being unable to file the substantive appeal due to the non-availability of the court record, it is necessary that the proceedings herein be stayed pending the hearing and determination of the intended appeal.
12. The Advocate further submits that the intended appeal raises, inter alia, issues of jurisdiction and the doctrine of exhaustion under Section 53(1) of the Advocates Act, and that continuation of the proceedings before this Court would render his intended appeal nugatory.
C. THE CLIENT’S REPLYING AFFIDAVIT.
13. The Advocate’s motion is opposed and in his replying affidavit sworn on 9th March 2026, the Client confirms that the subject ruling was delivered on 3rd February, 2025 in respect of his interlocutory application dated 20th June, 2024, which inter alia compelled the Advocate to file his Advocate–Client bill of costs for taxation before the Taxing Officer. He avers that in compliance with the said order, the Advocate submitted to the jurisdiction of the Taxing Officer and filed an Advocate–Client bill of costs dated 28th March, 2025.
14. The Client further deposes that the present dispute is rooted in the Advocate’s handling of funds arising from CMCC No. 437 of 2018, where party and party costs were agreed upon by consent in the sum of Ksh. 500,000/- all-inclusive. He contends that despite this agreement, and after receiving decretal sums on his behalf, the Advocate proceeded to claim exorbitant Advocate–Client fees amounting to Ksh.3,951,510.80/- together with a further sum of Ksh.1,422,554.90/- allegedly as interest, and unilaterally deducted an aggregate sum of Ksh.5,374,064.70/- from monies held in trust for him without issuing a statutory notice.
15. The Client asserts that the Advocate is only entitled to Ksh.693,703/- after taking into account the agreed party and party costs and deposits allegedly received, and therefore maintains that the Advocate is unlawfully withholding Ksh.4,680,317.70/-.
16. The Client further avers that the Advocate, having filed his bill of costs, submitted himself to the jurisdiction of the Taxing Officer and is therefore estopped from seeking to stay or otherwise delay the taxation process, which remains the proper forum for determination of his entitlement.
17. The Client contends that the application is an afterthought, has been brought after inordinate delay of over one year from the ruling of 3rd February, 2025, and is intended to frustrate the taxation process and enable the Advocate to continue holding onto the disputed funds. He also takes the view that the application is incompetent for failure to provide security for the sum of Ksh.4,680,317.70/-.
18. The Client disputes the Advocate’s position regarding the intended appeal, stating that a record of appeal is the proper mode of instituting an appeal to the Court of Appeal and that any missing proceedings may be filed later through a supplementary record, and therefore the absence of proceedings cannot justify halting proceedings. He also contends that the Court ought not to be drawn into considerations of arguability of the intended appeal at this stage, as that is not a relevant factor in the determination of the application for stay.
19. Finally, the Client accuses the Advocate of abusing the process of the Court by engaging in delaying tactics to avoid taxation of his bill of costs while continuing to hold funds allegedly due to him. He maintains that no prejudice or substantial loss has been demonstrated by the Advocate, and that the application is made in bad faith, is an abuse of the court process, is unmeritorious and should be dismissed. He urges that, in any event, the Advocate should be ordered to deposit the disputed sum of Ksh. 4,680,317.70/- in Court or in a joint interest-earning account to secure his interests pending determination of the dispute.
D. THE ADVOCATE’S SUBMISSIONS IN SUPPORT OF THE MOTION.
20. The Advocate, in his oral submissions, states that the ruling in respect of which the present application arises was delivered on 3rd February, 2025, following which the he immediately filed a notice of appeal and requested for copies of the proceedings to facilitate the preparation of the record of appeal. He contends that the delay in filing the record of appeal has been occasioned by the time taken to obtain the said proceedings.
21. The Advocate further states that the intended appeal principally challenges the jurisdiction of the trial court, which he submits is a fundamental issue warranting determination on appeal. He submits that the present application, seeks, inter alia, an order that the impugned decision be uploaded onto the Case Tracking System to enable the Advocate access it for purposes of advancing the appeal.
22. The Advocate additionally urges the Court to stay the proceedings, or execution thereof, on the basis that the trial court acted without jurisdiction, and that jurisdiction being a threshold issue, the continuation of the proceedings would be prejudicial to the intended appeal. He further informs the Court that the record of appeal shall be filed expeditiously once the proceedings are availed, and that the he is willing to furnish such security as the Court may deem appropriate.
23. Finally, the Advocate states that the sum in dispute was deducted in respect of professional services rendered in a number of matters in which he acted, and that the same was therefore properly accounted for in the course of those engagements.
E. THE CLIENT’S SUBMISSIONS IN OPPOSITION TO THE ADVOCATE’S MOTION.
24. On his part, the Client submits that the dispute arises from taxation proceedings in CMCC No. 437 of 2018, which were conducted pursuant to the order of Mwamuye, J. and in respect of which party and party costs were agreed upon by consent on 12th March, 2020 in the sum of Ksh.500,000/-. He states that there is a valid consent on record, annexed to the pleadings, and further contends that the applicable legal framework allows for an increase of the taxed amount by one half.
25. The Client further submits that the Advocate wrongfully hived off Ksh.5,374,064.70/- from monies received, which he claimed included his interest, and therefore acted improperly in retaining the said sums.
26. The Client argues that under Order 42 Rule 6 of the Civil Procedure Rules, an Applicant in an application for stay of execution must demonstrate timeliness, sufficient cause, absence of substantial loss, provision of security and utmost good faith. In this regard, the Client contends that no application for stay was made on the date the ruling was delivered.
27. The Client further submits that the Advocate is barred by the doctrine of estoppel from challenging the jurisdiction of the court to tax his own bill of costs, having participated fully in the taxation process. He states that on 3rd February, 2025, the Advocate effectively conceded jurisdiction by requesting for 60 days to file his bill of costs, and subsequently proceeded to file the bill on 18th March, 2025, continued to appear before the Deputy Registrar and even amended his bill of costs, thereby affirming the court process.
28. The Client further submits that the intended appeal cannot be rendered nugatory in the manner alleged, and that in any event, this Court lacks jurisdiction to make such a determination, it being a matter reserved for the Court of Appeal.
29. The Client also points out that the Advocate has not demonstrated any substantial loss that he stands to suffer if the orders sought are not granted, which he considers a fatal omission in the application. While the Advocate indicates willingness to furnish security, the Client proposes that the same be secured by depositing Ksh.4,680,317/- in a joint account in the names of both parties within 14 days.
30. Finally, the Client submits that the application is merely calculated to delay justice and unjustly continue holding the Client’s money, noting further that the duration of the intended appeal is uncertain and that in any event, the practice by the Complaints Commission is to refer Advocate–Client costs matters to the Deputy Registrar for determination.
F. THE ADVOCATE’S SUBMISSIONS IN REJOINDER.
31. The Advocate, in his rejoinder, submits that the bill of costs in the original matter was not taxed but was instead agreed upon by the parties, and therefore the basis upon which the Client challenges the proceedings is misconceived.
32. The Advocate further states that the present application was filed expeditiously, but that the delay in progressing the appeal was occasioned by the unavailability of proceedings, which were only furnished to the Applicant on 11th March, 2026.
33. The Advocate reiterates that the bill of costs was filed in compliance with the order of the Court once the necessary documents were availed, and maintains that such compliance did not amount to submitting to the Court’s jurisdiction and that he continues to challenge the jurisdiction of the Court.
34. The Advocate further submits that the issue of substantial loss is not applicable in the present circumstances, where the central question on appeal concerns jurisdiction, which he contends is a threshold issue overriding other considerations.
G. THE RULING DELIVERED ON 3RD FEBRUARY, 2025.
35. To put this matter into perspective, a brief history is apt.
36. By the ruling rendered on 3rd February, 2025, my brother Mwamuye J. determined the Client’s application dated 20th June, 2024 that had sought orders compelling the Advocate to deposit in court the sum of Ksh.4,626,064.70/-, to file an Advocate–Client bill of costs in respect of services rendered in CMCC No. 437 of 2018, and to render a cash account of monies received and held on behalf of the Applicant.
37. The application was resisted by way of a preliminary objection on the ground that the dispute concerned professional conduct and ought to have been referred to the Advocates Complaints Commission under Section 53(4) of the Advocates Act.
38. In resolving the preliminary objection, the Court held that Section 53(4) of the Advocates Act does not oust the jurisdiction of the High Court in matters concerning Advocate–Client accounts, fees and recovery of Client funds. It found that the dispute before it was essentially civil and financial in nature, rather than disciplinary, and thus properly fell within the Court’s jurisdiction under Order 52 of the Civil Procedure Rules, which empowers the Court to order delivery of accounts, taxation of costs and payment or release of Client funds held by an Advocate.
39. On the merits, the Court emphasized that an Advocate is under a legal obligation to render accounts and to file an Advocate–Client bill of costs for taxation upon termination of the retainer. It found that the Advocate’s failure to file such a bill, while continuing to withhold substantial client funds, was unjustified.
40. Consequently, the Court held that the Advocate must comply with the Advocates (Remuneration) Order, 2014, particularly Schedule 7, by filing the bill for taxation before the Deputy Registrar.
41. The Court further addressed the issue of the Advocate’s lien, holding that such lien is merely possessory and limited to securing payment of properly ascertained fees. It directed that the sum of Ksh.4,626,064.70/- held by the Advocate be applied first towards satisfaction of the taxed costs, with any balance thereafter being released to the Client, there being no legal basis for retention of funds beyond the Advocate’s legitimate entitlement.
42. Accordingly, the Court allowed the application, ordered the Advocate to file and prosecute the Advocate–Client bill of costs for taxation, directed that the taxed amount be deducted from the funds held, and that the remainder be released to the Client, with no order as to costs.
H. ISSUES FOR DETERMINATION.
43. Now back to the motion before me, the two parties rely on the positions proffered in their respective affidavits and submissions.
44. From the application, the affidavits on record and the rival submissions, the following two issues arise for determination:
a. Whether the Advocate has met the threshold for grant of an order of stay of proceedings pending appeal.
b. Who should bear the costs of the application.
I. ANALYSIS AND FINDINGS.
45. I will proceed to address and determine the two issues.
46. The first issue for determination is whether the Advocate has satisfied the legal threshold for the grant of an order of stay of proceedings pending appeal.
47. The Court is mindful that an order staying proceedings is an exceptional remedy, since it has the effect of halting the progress of a matter before a court or tribunal that is otherwise properly seized of jurisdiction. It therefore ought not to be granted lightly, but only in circumstances that clearly demonstrate that continuation of the proceedings would occasion injustice or render an intended appeal nugatory.
48. The legal principles governing the grant of stay of proceedings are well settled. Although the Civil Procedure Rules do not expressly set out detailed criteria for stay of proceedings in the same manner as stay of execution, courts have consistently applied analogous principles grounded in judicial discretion and the overarching interests of justice. The discretion must be exercised judiciously, not arbitrarily, and with due regard to the competing rights of the parties and the need to ensure expeditious disposal of litigation.
49. In the case of Butt v Rent Restriction Tribunal [1982] KLR 417, the Court of Appeal emphasized the careful exercise of discretion in interlocutory applications, stating that:
“The power of the court to grant or refuse an application for stay is discretionary, and the discretion should be exercised in such a way as not to prevent an appeal.”
50. My understanding of what this authority underscores is that while the right of appeal must be preserved, it does not automatically entitle a party to halt proceedings in the lower court.
51. Further, in Madhupaper International Limited v Kerr [1985] KLR 840, the Court of Appeal cautioned against granting orders that unnecessarily obstruct the course of justice or delay the resolution of disputes. The Court observed that interlocutory relief should not be used in a manner that paralyses proceedings unless there is clear justification founded on substantial risk of injustice or irreparable prejudice.
52. Against that legal backdrop, the Advocate’s application is principally anchored on the assertion that he has lodged a notice of appeal challenging, among other things, the jurisdiction of this Court, and that unless proceedings are stayed, the taxation process currently underway will render his intended appeal nugatory. He also places reliance on alleged difficulties in obtaining typed proceedings, which he argues has impeded the preparation of a complete record of appeal.
53. A significant plank of the Client’s opposition is that the Advocate, by filing his bill of costs and actively participating in taxation proceedings, has submitted to the jurisdiction of this Court and is therefore estopped from challenging it. While this argument was strongly advanced, the Court must restate the legal position on jurisdiction, which is settled beyond peradventure.
54. Jurisdiction is not a matter that can be conferred by the consent, conduct, acquiescence or participation of parties. It is a creature of the Constitution or statute, and a court either has it or it does not. The Court of Appeal in the celebrated case of Motor Vessel Lillian “S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 made this principle unequivocally clear when it stated:
“Jurisdiction is everything. Without it, a court has no power to make one more step… where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence.”
55. It follows therefore that the mere fact that a party has participated in proceedings, filed pleading, or complied with court directions does not, in law, confer jurisdiction upon a court that is otherwise lacking it. Equally, participation in proceedings does not necessarily preclude a party from raising a jurisdictional challenge at an appropriate stage.
56. However, in the present case, the question is not abstract. The issue of jurisdiction was already directly addressed and determined in the ruling of 3rd February, 2025, where this Court (Mwamuye J.) affirmed its competence to entertain and determine Advocate–Client fee disputes under the applicable legal framework.
57. Although a further challenge can only be addressed by the Court of Appeal, the Advocate has not placed before this Court any new or compelling material demonstrating that the earlier determination on jurisdiction is prima facie erroneous or that continuation of the taxation process is fundamentally without legal foundation. In the absence of such material, the Court is not persuaded that the jurisdictional argument advanced is sufficient to justify the drastic remedy of staying proceedings that are already lawfully underway pursuant to a subsisting court order.
58. The Court further addresses the Advocate’s contention that continuation of taxation proceedings will render the intended appeal nugatory. With respect, this argument does not meet the legal threshold required for stay of proceedings. Taxation of costs is a judicial process whose primary function is to assess and quantify costs payable between parties. It does not constitute execution or enforcement of a decree in the strict sense, but rather a preliminary step in the ascertainment of liability.
59. A determination by the Taxing Officer, even where adverse to a party, does not extinguish appellate rights. Accordingly, the mere progression of taxation proceedings does not result in irreversible prejudice that cannot be addressed through the appellate process. The apprehension that the appeal will be rendered nugatory is therefore speculative rather than demonstrable.
60. The Court also takes cognizance of the fact that taxation proceedings are a specialized statutory mechanism designed to facilitate efficient resolution of disputes relating to legal fees. To halt such proceedings without compelling justification would not only delay the determination of rights between the parties but would also undermine the objective of expeditious resolution of disputes within the civil justice system.
61. On the issue of delay and inability to obtain proceedings, while the Court is not unsympathetic to logistical challenges that may arise in the preparation of an appeal record, such challenges do not, in themselves, justify halting ongoing proceedings before a competent court. The appellate framework provides alternative remedies, including the filing of records with leave to supplement, and does not require paralysis of lower court proceedings as a precondition for appeal.
62. In the circumstances of this case, the Court is not persuaded that the Advocate has demonstrated sufficient cause, real prejudice or any exceptional circumstances warranting the exercise of discretion in his favour. The threshold for the grant of stay of proceedings, which is intentionally high due to its disruptive effect on judicial process, has not been met.
63. Accordingly, the Court finds that the Advocate has failed to satisfy the requirements for the grant of stay of proceedings. The first issue is therefore determined in favour of the Client and against the Advocate.
64. The second issue is a determination of the costs of this application.
65. The starting point is Section 27(1) of the Civil Procedure Act, which provides that:
“Costs of and incidental to all suits shall be in the discretion of the Court or Judge, and the Court or Judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid…”
66. The general principle under Section 27 is that costs follow the event. However, the provision also vests the Court with full discretion to depart from that principle depending on the circumstances of the case, the conduct of the parties and the interests of justice.
67. The Court of Appeal in Supermarine Handling Services Ltd v Kenya Revenue Authority [2010] eKLR stated:
“The award of costs is a matter of judicial discretion which must be exercised judicially. The basic rule on attribution of costs is that costs follow the event, but the Court may for good reason depart from it.”
68. Likewise, in Morgan Air Cargo Limited v Everest Enterprises Limited [2014] eKLR, the Court reiterated that:
“The discretion to award costs is not to be exercised arbitrarily but on the basis of reason, fairness and justice.”
69. In the present matter, although the Advocate has not succeeded in the application, the Court is equally mindful that the dispute between the parties arises from an Advocate–Client relationship dispute already before the Taxing Officer and now intertwined with interlocutory appellate proceedings.
70. Awarding costs to either party at this stage would only serve to escalate the acrimony and further protract a dispute that is already substantially before the Taxing Officer for resolution on merits. The Court is of the view that such escalation would not serve the overriding objective of the Civil Procedure Act and the interests of justice.
71. In the circumstances, and in exercise of discretion under Section 27 of the Civil Procedure Act, the most appropriate order is that each party bears its own costs of the application.
J. DISPOSITION.
72. The application dated 23rd February, 2026 is hereby dismissed with no order as to costs.
73. This file shall be placed before the Deputy Registrar for further proceedings on 27th April, 2026, as earlier scheduled.
DELIVERED (virtually), DATED & SIGNED this 23rd day of April, 2026.
JOE M. OMIDO
JUDGE
FOR ADVOCATE: Mr. Okoth.
FOR CLIENT: Mr. Tiego.
COURT ASSISTANT: Mr. Juma.