1.This is an application by way of notice of motion dated 21st November 2023.The application was filed under certificate of urgency brought under section 3A of the civil procedure act and under section 51 of the Advocates Act , section 11,49 and 51of the advocates renumeration order and order 51 rule 1 of the civil procedure rules.
2. The applicant seeks orders that:
1. Spent
2. Spent
3. This Honourable court be pleased to grant the applicant leave to file reference out of time.
4. The attached reference be deemed to have been filed and served within time upon the payment of the requisite fees.
5. In reference to prayers (3) and (4) above, the Honourable court be pleased to grant orders of stay of execution of the attachment/ sale pending the hearing and determination of the reference.
6. The cost of this application together with any costs including auctioneers cost born as a consequence of the said certificate of costs be borne by the respondents.
2. The application is supported by the grounds outlined on the face of the application as well as the averments in the supporting affidavit of Engineer Philip Okundi, the director of the applicant hearing.
3. The applicant avers that on 17/11/2023, copies of warrant of sale of property in execution of certificate of costs together with warrants of attachment of movable property in execution of the certificate of costs and a copy of proclamation were received in their offices from Kimu auctioneers and that he instructed their advocates on record to find out the position of the file since they had not been served with any party and bill of costs by the respondent and no correspondents has ever been served upon them for payment of the costs awarded to the respondent relating to Kisiis Chief Magistrate’s court Miscellaneous Application Number E146 OF 2021.
4. The said miscellaneous application was dispensed with dismissing the application on grounds that the court lacked territorial jurisdiction. No assessment of costs, taxation notice or certificate of costs was ever served upon them. That the determination of the Business Premises Rent Tribunal being case No. 26 B OF 2016 having been heard and determined at Kisii. He filed Kisii CM miscellaneous application number E146 OF 2021, seeking to have the orders issued by the Business premises Rent tribunal in 212/2019 be adopted as a decree of the court and a rule was delivered dismissing the application with costs on the grounds that the court lacked territorial jurisdiction.
5. The warrants of attachment extracted by the respondent and the proclamation served upon the claimant are irregular as no service of outcome of the bill of costs or certificate of costs were ever conducted in the said proceedings and had the same been served, the applicant would have filed a reference to the said certificate of costs within the stipulated timelines.
6. That costs in certificate of costs issued on 31/08/2023 are not only exorbitant but unfair taking into account no suit had been filed but a miscellaneous application seeking to adopt the orders of tribunal and the same did not amount to a suit. The said costs were not taxed in accordance to the provisions of schedule 7 of the Advocate Renumeration Order. Also that said costs were assessed and taxed as if the matter was for suit and went for a full trial and which I not the case as the proceedings were instituted under miscellaneous application which was not determined on merit as the court directed that it lacked jurisdiction to entertain the said application.
The respondent submissions
7. The respondent filed grounds of opposition dated 13/03/2024 wherein, he states that the application lacks merit and its an abuse of the court process. He stated too that the application is mischievous and is meant to defeat the course of justice.
Analysis and determination
8. This court directed that this application be disposed off by way of written submissions from the record it is clear that all the parties have filed their submission which I have considered in my analysis and determination herein below;
ISSUES OF DETERMINATION
9. Having the application, the response thereto, and the submission of the parties, the issues of determination are;
a) Whether the applicant has met the threshold for grant of leave to file reference out of time
b) Whether the applicant has satisfied the conditions for grant of stay of execution of certificate of costs pending the hearing and determination of the reference.
Whether the applicant has met the threshold for grant of leave to file reference out of time
10. In the case of Achola & 2 others vs Otieno, the court held that; Indeed, in exercising its discretion to allow an application seeking extension to file a reference out of time, a court had to be satisfied that the omission to file the same within time was excusable. In other words, there had to be a plausible explanation for the delay in filing the reference.
The applicant had 14 days from the delivery of the ruling to file a reference in this court. However, he owns up that he filed the application on 21/11/2023, which was way after the expiry of the 14 day window. The question this court has to answer is whether the said delay has been explained? In this instant case the applicant claims that after the delivery of the ruling which they intend to file the reference against, neither the party and party bill of costs nor certificate of costs was ever served upon his advocates on record and that they only got wind of the said costs having been assessed on 17/11/2023 after Kimu auctioneers had served them with proclamation, warrants of attachment and certificate of costs. They contend that the warrants of attachments extracted by the respondents and the proclamation served upon them are irregular as there was service of the outcome of the bill of costs or certificate of costs were ever served.
11. Unfortunately, the respondent was required to confirm whether indeed see effected. This was not done as no return of service of the process server was filed . The respondent filed grounds of opposition to the application which did does not explain whether service was effected or not . it is thus , it is outright, the applicant was not served with the Bill of costs . The failure by the applicant to file the reference within time is thus excusable .
Whether the applicant has satisfied the conditions for grant of stay of execution of certificate of costs pending the hearing and determination of the reference.
12. Stay of Execution is provided under Order 42 Rule 6 of the Civil Procedure Rules 2010 as follows;“
(1)No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2)No order for stay of execution shall be made under subrule (1) unless –
(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
13. In the case of Matata & another v Rono & another [2024] KEHC 2799 (KLR),it was stated that: The three conditions to be fulfilled can therefore be summarized as follows;
a. that substantial loss may result to the applicant unless the order is made
b. application has been made without unreasonable delay
c. security as the court orders for the due performance
14. These principles were enunciated in Butt v Rent Restriction Tribunal [1979] the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that: -
a. The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.
b. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.
c. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
d. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse.
15. In this case, the applicant contends that the application was heard in the absence of their advocate, and that he not notified of the taxation date and the bill was not served upon him The respondent on the other hand however, has not disputed the claim of not serving the applicant but instead has only stated that the application is mischievous and meant to defeat the course of justice. I have already found that the bill was not served upon the applicant and thus he has shown sufficient cause for granting stay pending appeal . The applicant has also decried that the costs as assessed by the taxing master is exorbitant and unjustified. Without going into the merits of determining whether indeed the costs taxed were exorbitant, it is evident that the reference raises triable issues such that if the stay of execution of the is not granted, then the hearing and determination of the reference shall be rendered a mere academic exercise. This will mean that the applicant shall suffer substantial loss. On whether the application was served within reasonable time , applicant told this court that he was served with certificate of costs on 17.11.23 which is not denied and I note that this application was filed on 22.11.23 . the application was thus filed within reasonable time From the foregoing, I find that the applicant has met the requirements for grant of stay of execution and the same is thus granted.
CONCLUSION
16. In the upshot the application is allowed on the following terms:
a. The applicant is granted leave to file reference out of time.
b. The annexed reference is deemed to have been filed and served within time upon payment of the requisite fees within 7 days from today.
c. Stay of execution pending hearing and determination of the reference is granted .
d. The respondent is directed to file a response to the reference within 10 days from todate.
e. mention on Costs to the applicant .
17. It is so ordered.
T.A ODERA
JUDGE
3.6.25
Delivered Virtually via teams platform on this 3rd day of June 2025 in the presence of ;
Miss Oluoch holding brief for Obach for the respondent.
Mr Ndungu holding brief for Kabiru for the applicant
CA : Ochieng
2. The applicant seeks orders that:
1. Spent
2. Spent
3. This Honourable court be pleased to grant the applicant leave to file reference out of time.
4. The attached reference be deemed to have been filed and served within time upon the payment of the requisite fees.
5. In reference to prayers (3) and (4) above, the Honourable court be pleased to grant orders of stay of execution of the attachment/ sale pending the hearing and determination of the reference.
6. The cost of this application together with any costs including auctioneers cost born as a consequence of the said certificate of costs be borne by the respondents.
2. The application is supported by the grounds outlined on the face of the application as well as the averments in the supporting affidavit of Engineer Philip Okundi, the director of the applicant hearing.
3. The applicant avers that on 17/11/2023, copies of warrant of sale of property in execution of certificate of costs together with warrants of attachment of movable property in execution of the certificate of costs and a copy of proclamation were received in their offices from Kimu auctioneers and that he instructed their advocates on record to find out the position of the file since they had not been served with any party and bill of costs by the respondent and no correspondents has ever been served upon them for payment of the costs awarded to the respondent relating to Kisiis Chief Magistrate’s court Miscellaneous Application Number E146 OF 2021.
4. The said miscellaneous application was dispensed with dismissing the application on grounds that the court lacked territorial jurisdiction. No assessment of costs, taxation notice or certificate of costs was ever served upon them. That the determination of the Business Premises Rent Tribunal being case No. 26 B OF 2016 having been heard and determined at Kisii. He filed Kisii CM miscellaneous application number E146 OF 2021, seeking to have the orders issued by the Business premises Rent tribunal in 212/2019 be adopted as a decree of the court and a rule was delivered dismissing the application with costs on the grounds that the court lacked territorial jurisdiction.
5. The warrants of attachment extracted by the respondent and the proclamation served upon the claimant are irregular as no service of outcome of the bill of costs or certificate of costs were ever conducted in the said proceedings and had the same been served, the applicant would have filed a reference to the said certificate of costs within the stipulated timelines.
6. That costs in certificate of costs issued on 31/08/2023 are not only exorbitant but unfair taking into account no suit had been filed but a miscellaneous application seeking to adopt the orders of tribunal and the same did not amount to a suit. The said costs were not taxed in accordance to the provisions of schedule 7 of the Advocate Renumeration Order. Also that said costs were assessed and taxed as if the matter was for suit and went for a full trial and which I not the case as the proceedings were instituted under miscellaneous application which was not determined on merit as the court directed that it lacked jurisdiction to entertain the said application.
The respondent submissions
7. The respondent filed grounds of opposition dated 13/03/2024 wherein, he states that the application lacks merit and its an abuse of the court process. He stated too that the application is mischievous and is meant to defeat the course of justice.
Analysis and determination
8. This court directed that this application be disposed off by way of written submissions from the record it is clear that all the parties have filed their submission which I have considered in my analysis and determination herein below;
ISSUES OF DETERMINATION
9. Having the application, the response thereto, and the submission of the parties, the issues of determination are;
a) Whether the applicant has met the threshold for grant of leave to file reference out of time
b) Whether the applicant has satisfied the conditions for grant of stay of execution of certificate of costs pending the hearing and determination of the reference.
Whether the applicant has met the threshold for grant of leave to file reference out of time
10. In the case of Achola & 2 others vs Otieno, the court held that; Indeed, in exercising its discretion to allow an application seeking extension to file a reference out of time, a court had to be satisfied that the omission to file the same within time was excusable. In other words, there had to be a plausible explanation for the delay in filing the reference.
The applicant had 14 days from the delivery of the ruling to file a reference in this court. However, he owns up that he filed the application on 21/11/2023, which was way after the expiry of the 14 day window. The question this court has to answer is whether the said delay has been explained? In this instant case the applicant claims that after the delivery of the ruling which they intend to file the reference against, neither the party and party bill of costs nor certificate of costs was ever served upon his advocates on record and that they only got wind of the said costs having been assessed on 17/11/2023 after Kimu auctioneers had served them with proclamation, warrants of attachment and certificate of costs. They contend that the warrants of attachments extracted by the respondents and the proclamation served upon them are irregular as there was service of the outcome of the bill of costs or certificate of costs were ever served.
11. Unfortunately, the respondent was required to confirm whether indeed see effected. This was not done as no return of service of the process server was filed . The respondent filed grounds of opposition to the application which did does not explain whether service was effected or not . it is thus , it is outright, the applicant was not served with the Bill of costs . The failure by the applicant to file the reference within time is thus excusable .
Whether the applicant has satisfied the conditions for grant of stay of execution of certificate of costs pending the hearing and determination of the reference.
12. Stay of Execution is provided under Order 42 Rule 6 of the Civil Procedure Rules 2010 as follows;“
(1)No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2)No order for stay of execution shall be made under subrule (1) unless –
(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
13. In the case of Matata & another v Rono & another [2024] KEHC 2799 (KLR),it was stated that: The three conditions to be fulfilled can therefore be summarized as follows;
a. that substantial loss may result to the applicant unless the order is made
b. application has been made without unreasonable delay
c. security as the court orders for the due performance
14. These principles were enunciated in Butt v Rent Restriction Tribunal [1979] the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that: -
a. The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.
b. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.
c. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
d. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse.
15. In this case, the applicant contends that the application was heard in the absence of their advocate, and that he not notified of the taxation date and the bill was not served upon him The respondent on the other hand however, has not disputed the claim of not serving the applicant but instead has only stated that the application is mischievous and meant to defeat the course of justice. I have already found that the bill was not served upon the applicant and thus he has shown sufficient cause for granting stay pending appeal . The applicant has also decried that the costs as assessed by the taxing master is exorbitant and unjustified. Without going into the merits of determining whether indeed the costs taxed were exorbitant, it is evident that the reference raises triable issues such that if the stay of execution of the is not granted, then the hearing and determination of the reference shall be rendered a mere academic exercise. This will mean that the applicant shall suffer substantial loss. On whether the application was served within reasonable time , applicant told this court that he was served with certificate of costs on 17.11.23 which is not denied and I note that this application was filed on 22.11.23 . the application was thus filed within reasonable time From the foregoing, I find that the applicant has met the requirements for grant of stay of execution and the same is thus granted.
CONCLUSION
16. In the upshot the application is allowed on the following terms:
a. The applicant is granted leave to file reference out of time.
b. The annexed reference is deemed to have been filed and served within time upon payment of the requisite fees within 7 days from today.
c. Stay of execution pending hearing and determination of the reference is granted .
d. The respondent is directed to file a response to the reference within 10 days from todate.
e. mention on Costs to the applicant .
17. It is so ordered.
T.A ODERA
JUDGE
3.6.25
Delivered Virtually via teams platform on this 3rd day of June 2025 in the presence of ;
Miss Oluoch holding brief for Obach for the respondent.
Mr Ndungu holding brief for Kabiru for the applicant
CA : Ochieng