I. Introduction
1. Before this Honourable Court for determination is the Notice of Motion application dated 18th November 2025 filed by Diani Properties Limited and Cotsworld Estate Limited, the 1st and 2nd Defendants/Applicants seeking stay of proceedings pending assessment and payment of costs in Mombasa HCCC No. 25 of 2022. The Motion is supported by the affidavit of F. Kinyua Kamundi, Advocate.
2. Upon service of the Application, the Plaintiff/Respondent, Jurgen Fuks, filed a Replying Affidavit sworn on 12th February, 2026 opposing the application.
II. The 1st and 2nd Defendants/Applicants’ case
3. The Application was brought under the provision of Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Cap. 21, Order 25 Rule 4 of the Civil Procedure Rules, 2010 and Article 159 of the Constitution of Kenya, 2010.
4. The Applicants sought for the following orders: -
a) Spent.
b) That this Honourable Court be pleased to order stay of all further proceedings herein pending the assessment and payment of costs by the Plaintiff to the 1st and 2nd Defendants in Mombasa High Court Civil Case No. 25 of 2022.
c) That the costs of this application be paid by the Plaintiff.
5. The application was premised on the grounds, testimonial facts and averments made out on the face of the application and further supported by the 5 Paragraphed annexed affidavit of F. KINYUA KAMUNDI, Advocate for the 1st and 2nd Defendants/Applicants dated on even date, wherein it was averred that:-
a) The Affiant made this statement in support of the suit to persuade the Court to grant the reliefs sought herein.
b) The Affiant averred that the Plaint herein dated 24th January 2025 was a copy‑paste of the Plaint the Plaintiff had filed in Mombasa High Court Civil Suit No. 25 of 2022.
c) There was produced and shown to him a copy of the Plaint marked as “FKK - 1”. The Defendants had challenged that suit on the grounds of jurisdiction and lost, whereupon the 1st and 2nd Defendants had filed Civil Appeal No. E097 of 2023.
d) By Notice dated 10th January 2025, the Plaintiff herein had withdrawn Mombasa HCCC No. 25 of 2022 with costs but had not paid the said costs.
e) There was produced and shown to him a copy of that Notice marked as “FKK2”. The costs were in the sum of Kenya Shillings One Million Eight Hundred and Eighty Two Thousand Five Thirty Nine Hundred (Kshs. 1,882,539.00/=).
f) There was produced and shown to him a copy of the 1st and 2nd Defendants’ Party & Party Bill of Costs marked as “FKK3”.
g) Upon withdrawal of that suit, Civil Appeal No. E097 of 2023 had to be withdrawn, and the costs were to be paid by the Plaintiff herein as the appeal could not be heard on a suit that had since been withdrawn.
h) In addition to the costs due and payable by the Plaintiff to the Defendants in HCCC No. 25 of 2022, the Plaintiff herein was obliged to pay the costs of that appeal.
i) The Court had jurisdiction to stay further proceedings in the suit and to allow the application, as otherwise the Plaintiff was forcing the Defendants to continue incurring legal costs without any hope of recovering them.
III. The responses by the Plaintiff/Respondent
6. The Plaintiff/Respondent, Jurgen Fuks, while opposing the application, responded to it through a 14 Paragraphed Replying Affidavit sworn on 12th February, 2026 wherein the Affiant averred as follows:
a. The Plaintiff herein, well conversant with the facts at hand and therefore duly competent and authorized to swear the affidavit.
b. He had read and understood the Notice of Motion dated 18th November 2025 together with the Supporting Affidavit sworn by Counsel for the 1st and 2nd Defendants/Applicants, and responded thereto as set out hereunder.
c. The Defendants/Applicants’ alleged costs of Kenya Shillings One Million Eight Hundred and Eighty Two Thousand Five Thirty Nine Hundred (Kshs. 1,882,539.00/=) were not ascertained and remained merely a claim contained in a Bill of Costs which was yet to be taxed and/or certified by the Taxing Officer.
d. The Affiant was advised by his advocate, Mr. Gikandi Ngibuini, which advice he verily believed to be true, that costs never became payable as a definite and enforceable sum merely by filing a Bill of Costs, and that taxation and assessment of costs were governed by the Advocates Remuneration Order and had to be pursued before the Taxing Officer and thereafter adopted as an order of the Court.
e. There was no provision of law compelling the Plaintiff/Respondent to suspend or delay prosecution of his claim in the present suit merely because the Defendants/Applicants alleged that they were owed costs in another suit.
f. His claim in this matter was for a sum of approximately a sum of Kenya Shillings Sixty Four Million Nine Ninety Nine Thousand Two Seventy Hundred (Kshs. 64,999,270/=), which was substantial, and it would be unjust and prejudicial for him to be denied a hearing on the basis of a secondary issue of costs amounting to a sum of Kenya Shillings One Million Eight Hundred and Eighty Two Thousand Five Thirty Nine Hundred (Kshs. 1,882,539.00/=)., which costs were not even taxed.
g. The Plaintiff/Respondent’s suit herein had been filed earlier than the filing of the Defendants/Applicants’ Bill of Costs, and as such, it was improper for the Defendants/Applicants to argue that the Plaintiff/Respondent must wait for taxation before proceeding with his claim.
h. This Honourable Court had already issued a hearing date for the suit on 18th March 2026, and it would be unjust and prejudicial to the Plaintiff/Respondent for the hearing to be stayed at such an advanced stage.
i. Further, the Defendants’/Applicants Bill of Costs in the withdrawn suit had not even been fixed for taxation or allocated any hearing date, and the same remained pending without certainty as to when it would be heard and determined.
j. The Affiant annexed documentary proof of his age and medical condition, being a copy of his passport marked as “JF ‑ 1”, a vascular ultrasound report marked as “JF ‑ 2”, and a laboratory test result report marked as “JF ‑ 3”, to demonstrate the urgency and prejudice he stood to suffer if the hearing was delayed.
k. In view of the foregoing, it was in the interests of justice that the matter proceeded to hearing and determination without delay as scheduled, while the Defendants/Applicants pursued their Bill of Costs separately when it was listed for taxation.
l. The Affiant deposed that the Application by the Defendants/Applicants were a delaying tactic, lacked merit, and ought to be dismissed with costs.
IV. Submissions
7. On the 19th November, 2025, while the Parties were present in Court, they were directed to have the Notice of Motion application dated 18th November, 2025 filed by the 1st and 2nd Defendants/Applicants, be disposed of by way of written submissions. All the parties complied with the Court’s directions.
8. Indeed, on 4th March, 2026, the parties were accorded opportunity to highlight their written submissions. M/s. Muyaa and Mr. Gikandi Advocates executed the task with high standards of diligence, dedication and devotion which befits professionalism. The Honourable Court was fully grateful for that gesture full of resilience and humility thereof
9. Pursuant thereto, the Court reserved delivery of Ruling on the 16th day of March, 2026 accordingly.
The Oral Submissions by the Defendants/Applicants.
10. On behalf of the Defendants/Applicants, the Law firm of M/s. Kinyua Muyaa & Company Advocates filed their written Submissions. M/s. Muyaa Advocate commenced her submission by informing Court that their case was based on the averments from the filed application dated 18th November, 2025. They sought for the reliefs as already set out herein above. It was brought under the provision of Order 25 ( 4 ) of the Civil Procedure Rules, 2010. In a nutshell they sought on having these proceedings be stayed as what was before the Court was exactly the same as what was before the lower Court.
11. The Learned Counsel averred that it was not disputed that the Plaintiff/Respondent had withdrawn the suit before the lower Court with costs. Despite of that the costs had not been settled todate. Instead, there had been an appeal but which was again withdrawn with costs. Todate, these costs awarded by court had not been paid.
12. It was the contention by the Learned Counsel, therefore, the Plaintiff/Respondent ought to be compelled to honour their obligation in law before being allowed to proceeding in the matter any further. She asserted that the right to be heard was commensurate to the right for fair hearing which were both Constitutional rights. Based on “the Principles of Oxygen Objectives (Double “O”) founded under the provision of Sections 1A, 1B, 3 & 3 of the Civil Procedure Act, Cap. 21 and Section 3 and 13 of the Environment & Land Court Act, No. 19 of 2011, this Court is vested with un - fettered discretion to grant and allow this application under the provision of Order 25 Rule 4 of the Civil Procedure Rules, 2010. Clearly, these were cases of a party filing and then withdrawing cases but failing to honour in settling costs. In the given circumstances, they should not be allowed to proceed on with the matter.
13. This were fundamental. The excuse for failure to settle costs based on old age and/or medical grounds was unattainable. Surprisingly, the Plaintiff/Respondent was able to pay the Advocates for the professional services rendered to him and other legal expenses but found it difficult to pay costs as ordered.
14. She urged the Court to note that they had not offered any security for the performance of the Court order as required by law. Resultantly, the Applicants would be exposed to a risk of lacking available remedy for recourse whatsoever.
15. Additionally, she distinguished the cited case of “County of Taita Tavetta – Versus – Wisedom Mwamburi” cited by the Plaintiff/Respondent to the effect that it was purely on matters of public institution, as shown under the contents of paragraph 26 of the decision and not case of individuals as was in this instant case.
16. In conclusion, therefore, she urged the Court to allow the application and the prayers sought accordingly.
The Oral Submissions by the Plaintiff/Respondents.
17. While opposing the Notice of Motion application dated 18th November, 2025 by the Defendants/Applicants herein, the Law firm of M/s. Gikandi & Company Advocates filed and highlighted their written submission. Mr. Gikandi Advocate stated that they were relying on the Replies contained in the replying Affidavits dated 12th February, 2026 sworn by Jugen Fuks, the Plaintiff/Respondent herein.
18. The Counsel further made reference to the latest Court of Appeal case of “County of Taita Tavetta – Versus – Wisedom Mwamburi” which addressed on the legal rationale to be considered when seeking orders for stay of proceedings. According to the Learned Counsel this relief would only be granted where there was serious and triable issues thereof. It was a grave order as when issued it meant that the whole proceedings was halted. The Counsel was or the view that there was no such serious nor compelling issues to stay the proceedings. In any case this court had already allocated a hearing date for this matter being 18th March, 2026. The scheduled hearing should be allowed to proceed accordingly.
19. As far as the Learned Counsel was concerned, it was the Defendants/Applicants who were to blame for failing to initiate the taxation process for their Party and party Bill of Costs before the taxation master rather than dragging those issues before this Court.
20. The Counsel wondered loudly whether a party would be stopped from taking appropriate legal action as he/she was entitled in law from the provision of Order 25 Rule 4 of the Civil Procedure Order, 2010. The Learned Counsel averred that the Court has unfettered discretion over the matter thereof. On making reference to the Principle of Oxygen Objective cited by the Defendants/Applicants it was intended to facilitate expeditious disposal of a matter and not otherwise. The Defendants/Applicants should be at liberty to pursue the Bill of Costs separately and independently from this matter.
21. In conclusion, the Learned Counsel strongly urged the Honourable Court to dismiss the application as it is all intended to continue delaying this case unnecessarily and let the matter proceed on for hearing to its logical conclusion.
V. Analysis and Determination
22. I have keenly considered the Notice of Motion application dated 18th November, 2025 by the 1st and 2nd Defendants/Applicants, the Replying Affidavit sworn by the Plaintiff/Respondent, both the oral and written submissions filed by the parties.
23. From the pleadings and arguments placed before this Honourable Court, the following five (5) issues fall for determination in relation to the instant application: -
(a) Whether the alleged costs of Kenya Shillings One Million Eight Hundred and Eighty Two Thousand Five Thirty Nine Hundred (Kshs. 1,882,539.00/=) in Mombasa HCCC No. 25 of 2022 constitute an enforceable obligation at this stage, or remain un‑ascertained pending taxation.
(b) Whether the withdrawal of Civil Appeal No. E097 of 2023 imposes a further obligation upon the Plaintiff to settle costs before proceeding with the present suit.
(c) Whether this Honourable Court has jurisdiction to stay proceedings in the present matter pending taxation and payment of costs in the withdrawn Mombasa suit and appeal.
(d) Whether the prejudice alleged by the Defendants outweighs the prejudice that would be occasioned to the Plaintiff if the hearing of his claim is stayed.
(e) What orders should issue as to costs of the application.
ISSUE No. a). Whether the alleged costs of a sum Kenya Shillings One Million Eight Hundred and Eighty Two Thousand Five Thirty Nine Hundred (Kshs. 1,882,539.00/=) in Mombasa HCCC No. 25 of 2022 constitute an enforceable obligation at this stage, or remain un‑ascertained pending taxation
24. Under this sub‑heading the Honourable Court will decipher whether the figure of a sum Kenya Shillings One Million Eight Hundred and Eighty Two Thousand Five Thirty Nine Hundred (Kshs. 1,882,539/=) claimed by the 1st and 2nd Defendants/Applicants is a definite, enforceable obligation or merely an un‑ascertained claim awaiting taxation.
25. The Defendants/Applicants argued that the Plaintiff/Respondent withdrew Mombasa HCCC No. 25 of 2022 with costs, and that the Defendants’ Party & Party Bill of Costs had been drawn and filed, amounting to a sum Kenya Shillings One Million Eight Hundred and Eighty Two Thousand Five Thirty Nine Hundred (Kshs. 1,882,539/=. They contended that the Plaintiff/Respondent was obliged to settle those costs before proceeding with the present suit, and that failure to do so continued to prejudice them financially.
26. However, the Plaintiff/Respondent maintained that the alleged costs were not yet taxed or certified by the Taxing Officer, and therefore did not constitute a judgment debt. He relied on the provisions of the Advocates Remuneration Order, which stipulate that costs only crystallize into an enforceable obligation upon taxation and subsequent adoption by the Court. He further averred that a Bill of Costs is merely a claim, and until taxation is undertaken, the sum remains indeterminate.
27. Ideally, the Court notes that the law is settled on this point. A Bill of Costs, however detailed, is not in itself a decree of the Court. It is only upon taxation by the Taxing Officer, and subsequent adoption, that costs become a definite and enforceable obligation. This position has been consistently upheld in Kenyan jurisprudence, where courts have emphasized that costs must be taxed before they can be executed or relied upon to stay proceedings in a separate matter.
28. Accordingly, the Honourable Court finds that the alleged costs of a sum Kenya Shillings One Million Eight Hundred and Eighty Two Thousand Five Thirty Nine Hundred (Kshs. 1,882,539/=) in Mombasa HCCC No. 25 of 2022 remain un‑ascertained pending taxation. They do not, at this stage, constitute an enforceable obligation against the Plaintiff.
29. Thus, I discern that the Defendants/Applicants are at liberty to pursue taxation and thereafter execution for recovery, but until then, the figure remains a claim and cannot be used to bar or stay proceedings in the instant suit. The application cannot succeed.
ISSUE No. b). Whether the withdrawal of Civil Appeal No. E097 of 2023 imposes a further obligation upon the Plaintiff to settle costs before proceeding with the present suit.
30. Under this sub‑heading the Honourable Court will decipher whether the Plaintiff’s withdrawal of Mombasa HCCC No. 25 of 2022, and the consequential withdrawal of Civil Appeal No. E097 of 2023, created an immediate obligation upon him to settle costs before prosecuting the present matter
31. The Defendants/Applicants submitted that once the primary suit in Mombasa was withdrawn with costs, the appeal founded upon that suit could not subsist. They argued that the Plaintiff/Respondent was therefore bound to not only pay the costs of the withdrawn High Court suit but also the costs of the appeal, since the appeal was rendered nugatory. They contended that allowing the Plaintiff/Respondent to proceed with the instant suit without first settling those liabilities would amount to abuse of the Court process and would unfairly burden the Defendants/Applicants with duplicative expenses.
32. On the other hand, the Plaintiff/Respondent maintained that while the appeal may indeed collapse upon withdrawal of the parent suit, the obligation to pay costs of the appeal, just like the costs of the withdrawn High Court matter, must follow the due process of taxation. He emphasized that until the Taxing Officer assessed and certified those costs, they remained un‑ascertained and unenforceable. He further argued that there was no statutory provision compelling him to suspend prosecution of his claim in this Court pending taxation in another forum.
33. The Honourable Court observes that the withdrawal of a suit with costs does indeed entitle the successful party to recover costs, and where an appeal is founded on such a suit, its withdrawal similarly entitles the opposing party to costs of the appeal. However, the enforceability of those costs is subject to taxation and adoption as an order of the Court. The mere fact of withdrawal does not, in itself, crystallize into a judgment debt payable forthwith.
34. Accordingly, while the Plaintiff is undoubtedly liable to meet the costs of both the withdrawn High Court suit and the appeal, those costs remain contingent upon taxation. They cannot, at this stage, be invoked to bar or stay proceedings in the present matter. The Defendants are at liberty to pursue taxation in the appropriate forum and thereafter recover the sums due, but this Court cannot halt proceedings herein on the basis of un‑taxed costs.
ISSUE No. c). Whether this Honourable Court has jurisdiction to stay proceedings in the present matter pending taxation and payment of costs in the withdrawn Mombasa suit and appeal.
35. Under this sub‑heading the Honourable Court will decipher whether it possesses jurisdiction to halt the progress of the instant suit until the Plaintiff settles the alleged costs in Mombasa HCCC No. 25 of 2022 and Civil Appeal No. E097 of 2023.
36. Kenyan courts have consistently held that they have jurisdiction to stay proceedings, but such discretion must be exercised sparingly and only where justice demands. Costs must first be taxed before they become enforceable, and financial prejudice alone is not sufficient to warrant a stay.
37. The provision of Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21 establish the overriding objective of the Act: to facilitate the just, expeditious, proportionate, and affordable resolution of disputes. Section 3A preserves the Court’s inherent jurisdiction to make orders necessary for the ends of justice or to prevent abuse of the process of the Court.
38. Similarly the provisions of Article 159 (2)(b) of the Constitution provides that: -
“justice shall not be delayed”
39. Thus, this Court has a Constitutional and Statutory mandate to consider the overriding objection set out in the aforementioned Act and the Constitution with a view of ensuring that there is just, expeditious, proportionate and affordable resolution of land disputes.
40. For stay of proceedings it has bot been disclosed in what stages of trial the suits ought to be stayed. No grounds have been demonstrated for making the order. In the case of:- “Kenya Wildlife Service – Versus - James Mutembei (2019) eKLR”, it was held that: -
“Stay of proceedings should not be confused with stay of execution pending appeal. Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on the right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceedings is high and stringent”
41. The Defendants/Applicants submitted that the Court has inherent jurisdiction under the provision of Sections 1A, 1B and 3A of the Civil Procedure Act, as well as Order 25 Rule 4 of the Civil Procedure Rules, 2010 to stay proceedings where justice so demands. They argued that unless proceedings herein are stayed, the Plaintiff/Respondent will continue to vex the Defendants with duplicative litigation while ignoring accrued liabilities, thereby occasioning prejudice and undermining the overriding objective of the law.
42. The provision of Order 25 Rule 4 of the Civil Procedure Rules, 2010 provides as follows:
“If any subsequent suit shall be brought before payment of costs of a discontinued suit upon the same or substantially the same cause of action, the court may order a stay of such subsequent suit until such costs are paid.”
43. It is clear from the provisions of Order 25 Rule 4 of the Civil Procedure Rules that the Court has a discretion whether or not to order a stay of any subsequent suit before the payment of costs in a previous suit. It is therefore not mandatory that any subsequent suit be stayed. That is clear from the use of word “may”. In exercising such discretion, the Court will take into account several factors including whether indeed the costs have been taxed or agreed and the conduct of the parties.
44. The provision of Order 25 of the Civil Procedure Order, 2010 is clear that if such costs are not paid, the court has a discretion to order that the subsequent suit be stayed. In the case of “I M N – Versus - P M K Murang’a HCCC No 38 of 2015 (O S)” Waweru J held as follows:-
“The court has an unfettered discretion under Order 25 Rule 4 of the Civil Procedure Rules, 2010. The court may order a stay of any subsequent suit brought upon the same or substantially the same cause of action in a previous suit before payment of costs of the discontinued suit, but exercise of such discretion must accord with the dictates of justice and will depend upon the particular circumstances of the case.”
45. See also the case of “John Kibet Kibor – Versus - Daniel Kiplangat Chepkwony (2017) eKLR”.
46. However, the Plaintiff/Respondent contended that while the Court has jurisdiction to stay proceedings in appropriate circumstances, such jurisdiction must be exercised sparingly and only where continuation of the suit would render nugatory the rights of the opposing party. He emphasized that the alleged costs remain un‑taxed and unenforceable, and therefore cannot form a lawful basis for stay. He further argued that his claim herein is substantial, already scheduled for hearing, and that staying proceedings would occasion grave prejudice to him, particularly given his age and medical condition.
47. The Honourable Court notes that jurisdiction to stay proceedings is indeed vested in the Court, both under statute and inherent powers. However, I reiterate that the exercise of such jurisdiction is discretionary and must be guided by principles of justice, proportionality, and avoidance of prejudice. Stay of proceedings is a drastic remedy, only to be granted where continuation of the suit would amount to abuse of process or cause irreparable harm.
48. In the present case, the alleged prejudice to the Defendants/Applicants is financial in nature, which can be compensated by costs. On the other hand, the Plaintiff/Respondent’s claim is substantial, and he has demonstrated personal circumstances that make delay prejudicial. Moreover, the alleged costs remain un‑ascertained pending taxation, and therefore cannot be invoked as a lawful ground to halt proceedings.
49. Accordingly, the Honourable Court finds that while it has jurisdiction to stay proceedings, the circumstances of this case do not warrant the exercise of that discretion. The application for stay on the basis of un‑taxed costs must therefore fail.
ISSUE No. d). Whether the prejudice alleged by the Defendants/Applicants outweighs the prejudice that would be occasioned to the Plaintiff/Respondent if the hearing of his claim is stayed.
50. Under this sub‑heading the Honourable Court will decipher the competing claims of prejudice advanced by the parties, and determine which side would suffer greater injustice should the Court grant or decline the stay of proceedings.
51. The Defendants/Applicants argued that unless proceedings are stayed, they will continue to incur legal costs in defending a suit that is substantially similar to one already withdrawn in Mombasa. They submitted that this amounts to duplication of expenses and exposes them to financial prejudice without any guarantee of recovery, particularly since the Plaintiff/Respondent has not settled the costs of the withdrawn suit and the related appeal. They contended that justice demands that the Plaintiff/Respondent first discharge his obligations before being allowed to prosecute a fresh claim.
52. The Plaintiff/Respondent, however, maintained that the alleged prejudice to the Defendants/Applicants is purely financial in nature and can be compensated by costs. He emphasized that his claim herein is substantial, amounting to approximately a sum of Kenya Shillings Sixty Four Million Nine Hundred and Ninety Nine Thousand Two Hundred and Seventy Hundred (Kshs. 64,999,270/=), and that staying proceedings would deny him access to justice. He further demonstrated that the matter has already been fixed for hearing, and that any delay would occasion grave prejudice to him, particularly given his age and medical condition, which he supported with documentary evidence annexed to his affidavit.
53. The Honourable Court observes that prejudice must be weighed not only in monetary terms but also in terms of access to justice and fairness. While the Defendants/Applicants’ concern is legitimate, it is not irreparable, as costs can be recovered once taxed and certified. On the other hand, the Plaintiff/Respondent’s prejudice is immediate and substantive, as a stay would deny him the opportunity to prosecute a claim of significant value and would exacerbate his personal circumstances.
54. Accordingly, the Court finds that the prejudice alleged by the Defendants/Applicants does not outweigh the prejudice that would be occasioned to the Plaintiff/Respondent if the hearing is stayed. The balance of convenience therefore favours allowing the matter to proceed to hearing as scheduled, while the Defendants/Applicants pursue taxation of their Bill of Costs in the appropriate forum.
ISSUE No. e). What orders should issue as to costs of the Notice of Motion application dated 18th November, 2025.
55. Under this sub ‑ heading the Honourable Court will decipher the appropriate orders on costs in light of the application and the responses thereto. Costs is a discretion of Court. The Proviso of Section 27 (1) of the Civil Procedure Rules Cap. 21 holds that Costs follow the events. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of “Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR” and “Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR”, the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR”, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances.
56. The Defendants/Applicants prayed that the costs of the Notice of Motion application dated 18th November, 2025 be borne by the Plaintiff/Respondent, arguing that he had occasioned unnecessary expense by filing a suit substantially similar to one already withdrawn in Mombasa, and by failing to settle accrued liabilities. They contended that the Plaintiff/Respondent’s conduct amounted to abuse of process and warranted an award of costs against him.
57. The Plaintiff/Respondent, however, submitted that the application was misconceived, premature, and intended merely to delay the hearing of his substantive claim. He argued that since the alleged costs remained un‑taxed and unenforceable, the application lacked merit and should be dismissed with costs to him.
58. The Honourable Court notes that costs are awarded at the discretion of the Court, guided by the principle that they follow the event unless the Court directs otherwise. In the present case, the application has been found to lack merit, as the alleged costs remain un‑ascertained pending taxation and cannot form a lawful basis for stay of proceedings. The Plaintiff has demonstrated that the application has occasioned delay and prejudice to his right of access to justice.
59. Accordingly, the Court finds that the appropriate order is to dismiss the application with costs to the Plaintiff/Respondent. This will serve both to compensate him for the expense of defending an unmerited application and to discourage the filing of similar delaying tactics in future.
VI. Conclusion and Disposition.
60. Ultimately, in view of the foregoing detailed and expansive analysis of the Notice of Motion application dated 18th November, 2025, by the Defendants/Applicants, the Replying Affidavit sworn by the Plaintiff/Respondent, and the written submissions filed herein, the Honourable Court arrives at the following decision and makes the orders below:-
a. THAT the Notice of Motion application dated 18th November, 2025 filed by the 1st and 2nd Defendants/Applicants seeking stay of proceedings pending taxation and payment of costs in Mombasa HCCC No. 25 of 2022 and Civil Appeal No. E097 of 2023 is found to be without merit and is hereby dismissed.
b. THAT the Honourable Court holds that the alleged costs of a sum Kenya Shillings One Million Eight Hundred and Eighty Two Thousand Five Thirty Nine Hundred (Kshs. 1,882,539/=) remain un‑ascertained pending taxation and therefore do not constitute an enforceable obligation at this stage. The Defendants/Applicants are at liberty to pursue taxation before the Taxing Officer and thereafter recover the sums due in accordance with law.
c. THAT the Honourable Court further finds that while it has jurisdiction to stay proceedings, the circumstances of this case do not justify the exercise of that discretion, as the prejudice alleged by the Defendants is financial and compensable by costs, whereas the prejudice to the Plaintiff would be immediate, substantial, and unjust.
d. THAT the hearing of this suit shall proceed as scheduled on the 18th day of March, 2026 through Physical means.
e. THAT the costs of the Notice of Motion dated 18th November, 2025 shall be awarded to the Plaintiff/Respondents to be borne by the 1st and 2nd Defendants/Applicants.
IT IS SO ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS………16TH …..…DAY OF ………MARCH…..……..……..2026.
Ruling delivered in the presence of:
(a) Mr. Daniel Disi, the Court Assistant;
(b) Ms. Murage Advocate holding brief for Mr. Gikandi Advocate for the Plaintiff/Respondent; and
(c) M/s. Muyaa Advocates for 1st and 2nd Defendants/Applicants.