1. I have considered the Notice of Motion dated 4th October, 2023, together with affidavit filed in support, the reply sworn in opposition to the same, the submissions of the parties and the applicable law.
2. The Applicant is seeking a stay of the taxation of costs awarded to the Plaintiff and the 2nd Defendant pursuant to the Court’s ruling delivered on 2nd June, 2023. The 1st Defendant has indicated that it has filed a Notice of Appeal and that an intended appeal is pending before the Court of Appeal.
3. The Application is opposed by both the Plaintiff and the 2nd Defendant. The Plaintiff filed a Replying Affidavit sworn on 6th November, 2023, and written submissions dated 1st April, 2025. The 2nd Defendant filed Grounds of Opposition dated 30th November, 2023.
4. The main issue for determination is whether the 1st Defendant has satisfied the conditions under Order 42, rule 6 of the Civil Procedure Rules for the grant of a stay of taxation proceedings pending appeal?
5. In support of the orders sought, the Applicant’s primary argument was that there is an appeal pending before the Court of Appeal, and that taxation ought to be stayed pending the outcome of the appeal, because proceeding with taxation at this point would not be good use of court’s time.
6. The applicable law is found at Order 42, rule 6(2), the principles are well-settled and conjunctive. The Applicant must establish: -
(a) That substantial loss may result if the stay is not granted;
(b) That the application has been made without unreasonable delay; and
(c) That security has been or will be provided for the due performance of any decree.
7. Based on the record, the ruling awarding costs was delivered on 2nd June, 2023, while the present Application was filed on 4th October, 2023, over four months later. The 1st Defendant has not offered a convincing explanation for this delay. In Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, the Court of Appeal emphasized that even a single day of delay must be satisfactorily explained. This was not done.
8. I am not persuaded that the Applicant has demonstrated any actual prejudice it would suffer by the mere taxation of costs. In Deposit Protection Fund v Rosaline Njeri Macharia [2006] eKLR, the court held that taxation of costs does not occasion substantial loss to the party against whom they are taxed. Similarly, in Nesco Services Limited v CM Construction (EA) Limited [2019] eKLR, the court emphasized that assertions of substantial loss must be supported by empirical or documentary evidence. This was not done.
9. Moreover, the 1st Defendant retains the right to file a Reference should it be dissatisfied with the outcome of the taxation. The Plaintiff correctly cited Pius Musimba & 15 others v Onesmus Ndolo Ngeta & 3 others [2022] eKLR, which held that taxation is merely an ascertainment of quantum and cannot itself occasion substantial loss. The court in Tom Ojienda & Associates v Mumias Sugar Co Ltd [2018] eKLR similarly declined to stay taxation on the ground that taxation is not final and can be challenged via a Reference.
10. The 1st Defendant has also not provided any form of security, which is a mandatory requirement under Order 42, rule 6(2)(b). In Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR), the court held that a stay will not be granted upon vague speculation or absent proof of necessity.
11. The Applicant relied on Commercial Bank of Africa v Lalji Karsan Rabadia & 2 others [2012] eKLR and Sagalla Ranchers Ltd v Mwadilo & another [2024] KEHC 2697 (KLR), urging the court to avoid multiplicity and waste of judicial resources. While those cases promote judicial efficiency, they are distinguishable: in the present case, taxation has not commenced, and the Plaintiff and 2nd Defendant are merely seeking to initiate the statutory taxation process before the Deputy Registrar.
12. The upshot is that the 1st Defendant has failed to satisfy the mandatory requirements under Order 42, rule 6(2). The delay remains unexplained, substantial loss is not demonstrated, and no security has been proposed. I therefore find and hold that the Application is without merit.
13. The Notice of Motion dated 4th October, 2023, is hereby dismissed with costs to the Plaintiff and to the 2nd Defendant.
Dated and delivered virtually via Microsoft Teams this day of July, 2025
2. The Applicant is seeking a stay of the taxation of costs awarded to the Plaintiff and the 2nd Defendant pursuant to the Court’s ruling delivered on 2nd June, 2023. The 1st Defendant has indicated that it has filed a Notice of Appeal and that an intended appeal is pending before the Court of Appeal.
3. The Application is opposed by both the Plaintiff and the 2nd Defendant. The Plaintiff filed a Replying Affidavit sworn on 6th November, 2023, and written submissions dated 1st April, 2025. The 2nd Defendant filed Grounds of Opposition dated 30th November, 2023.
4. The main issue for determination is whether the 1st Defendant has satisfied the conditions under Order 42, rule 6 of the Civil Procedure Rules for the grant of a stay of taxation proceedings pending appeal?
5. In support of the orders sought, the Applicant’s primary argument was that there is an appeal pending before the Court of Appeal, and that taxation ought to be stayed pending the outcome of the appeal, because proceeding with taxation at this point would not be good use of court’s time.
6. The applicable law is found at Order 42, rule 6(2), the principles are well-settled and conjunctive. The Applicant must establish: -
(a) That substantial loss may result if the stay is not granted;
(b) That the application has been made without unreasonable delay; and
(c) That security has been or will be provided for the due performance of any decree.
7. Based on the record, the ruling awarding costs was delivered on 2nd June, 2023, while the present Application was filed on 4th October, 2023, over four months later. The 1st Defendant has not offered a convincing explanation for this delay. In Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, the Court of Appeal emphasized that even a single day of delay must be satisfactorily explained. This was not done.
8. I am not persuaded that the Applicant has demonstrated any actual prejudice it would suffer by the mere taxation of costs. In Deposit Protection Fund v Rosaline Njeri Macharia [2006] eKLR, the court held that taxation of costs does not occasion substantial loss to the party against whom they are taxed. Similarly, in Nesco Services Limited v CM Construction (EA) Limited [2019] eKLR, the court emphasized that assertions of substantial loss must be supported by empirical or documentary evidence. This was not done.
9. Moreover, the 1st Defendant retains the right to file a Reference should it be dissatisfied with the outcome of the taxation. The Plaintiff correctly cited Pius Musimba & 15 others v Onesmus Ndolo Ngeta & 3 others [2022] eKLR, which held that taxation is merely an ascertainment of quantum and cannot itself occasion substantial loss. The court in Tom Ojienda & Associates v Mumias Sugar Co Ltd [2018] eKLR similarly declined to stay taxation on the ground that taxation is not final and can be challenged via a Reference.
10. The 1st Defendant has also not provided any form of security, which is a mandatory requirement under Order 42, rule 6(2)(b). In Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR), the court held that a stay will not be granted upon vague speculation or absent proof of necessity.
11. The Applicant relied on Commercial Bank of Africa v Lalji Karsan Rabadia & 2 others [2012] eKLR and Sagalla Ranchers Ltd v Mwadilo & another [2024] KEHC 2697 (KLR), urging the court to avoid multiplicity and waste of judicial resources. While those cases promote judicial efficiency, they are distinguishable: in the present case, taxation has not commenced, and the Plaintiff and 2nd Defendant are merely seeking to initiate the statutory taxation process before the Deputy Registrar.
12. The upshot is that the 1st Defendant has failed to satisfy the mandatory requirements under Order 42, rule 6(2). The delay remains unexplained, substantial loss is not demonstrated, and no security has been proposed. I therefore find and hold that the Application is without merit.
13. The Notice of Motion dated 4th October, 2023, is hereby dismissed with costs to the Plaintiff and to the 2nd Defendant.
Dated and delivered virtually via Microsoft Teams this day of July, 2025