REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. 46 OF 2020
POPULATION SERVICES KENYA…………….……….…1ST APPELLANT
SENIOR MANAGER, TRADE DEVELOPMENT
POPULATION SERVICES KENYA (PS-KENYA)……...2ND APPELLANT
VERSUS
MICHAEL KARANI GAKUYA …….……….……..………..RESPONDENT
RULING
A. Application
1. Vide a Motion application dated 27th March 2025, the Appellants/Applicants herein sought orders of stay of taxation of the Respondent’s Bill of Costs dated 13th December 2024 and any further proceedings pending the hearing and determination of this application and the appeal before the Kisumu Civil Appeal Court-Civil Appeal No. 238 of 2024.
2. The application was based on the grounds therein as well as the Supporting Affidavit of Allan Ngunze, Director of the Appellants/Applicants.
3. It was the Appellants’/Applicants’ case that this Court under the stewardship of Justice D. K. Kemei delivered it’s judgement on 24th February 2023 whereat it dismissed their case, and being aggrieved by the said judgment, the Appellants lodged their notice of appeal on 3rd March 2023, before the Court of Appeal.
4. The Appellants aver that whereas they had vide a Notice of Motion dated 14th March 2023 obtained orders for stay of execution pending the hearing and determination of their appeal before the Court of Appeal, the Respondent proceeded to file his Bill of Costs dated 13th December 2024, to which directions have been duly issued via orders dated 27th February 2025, wherein the same was fixed for directions on 9th April 2025. That unless the stay of taxation of the Respondent’s Bill of Costs is issued, the Appellants/Applicants stand to suffer irreparable loss and damage, and shall render their appeal nugatory if proper execution is levied against them for the said taxed costs.
5. In opposition to the Motion application, the Respondent herein filed his grounds of opposition dated 9th April 2025, wherein, he alleged that the Appellants/Applicants have failed to establish their basis for seeking the stay of taxation of the Respondent’s Bill of Costs dated 13th December 2024; that the order of stay of execution of judgement and/or decree are distinct from orders of stay of proceedings; that the ruling of this Court issued on 29th March 2023, simply did not stay proceedings in this case; that there exists no order stopping taxation of the Respondent’s Bill of Costs.
6. Vide Court directions issued on 14th July 2025, parties were ordered to canvass the application by way of written submissions. The Appellants duly complied with the Court’s directions and the Respondents opted to rely on their grounds of opposition dated 9th April 2025.
B. Determination
7. I have considered the application, the affidavit in support thereof, the grounds of opposition thereto and submissions of the applicants. The issue for determination is whether the Appellants/Applicants are entitled to stay of taxation pending appeal.
8. Order 42 Rule 6 of the Civil Procedure Rules provides that an appeal shall not operate as a stay of the judgment or ruling against which the appeal is filed. A party who wishes the have the execution of the decision appealed from stayed must therefore file an application for stay.
9. Under Order 42 Rule 6 of the Civil Procedure Rules, the Courts have wide discretion in granting stay pending appeal subject to the Appellants/Applicants satisfying the Court that substantial loss may result if the orders are not granted, that the application is timeously made and the Applicant is ready to provide such security for due performance of the decree as may be binding. The court also considers the balance of convenience under the oxygen principle as prescribed under sections 1A and 1B of the Civil Procedure Act.
10. The Applicant has not sought the stay of the decision, but rather the taxation of the Respondent’s Bill of Costs dated 13th December 2024.
11. This matter having gone on appeal, there is likely to be either additional costs against the Appellants/Applicants if the appeal is lost, or the Applicants may be discharged from the burden of payment of costs if it succeeds.
12. It therefore makes judicial sense to avoid a situation where the taxation will eventually have to be repeated or become redundant depending on the outcome of the appeal at the Court of Appeal.
13. It is for the foregoing reasons that, I find that the Motion application dated 27th March 2025, is merited and I grant orders prayed for in the application.
14. I accordingly, stay the taxation of the Bill of Costs dated 13th December 2024, filed by the Respondent/Decree Holder pending determination of Kisumu Civil Appeal Court-Civil Appeal No. 238 of 2024.
15. The costs of the application shall abide the outcome of the appeal.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 27th day of February 2026.
Mwanaisha.S. Shariff
Judge
In the presence of:
Ms Nyakongo holding brief for Ngala Awino the Appellants/Applicants
N/A by Maloba for the Respondent
Peter Machoni – Court Assistant
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. 46 OF 2020
POPULATION SERVICES KENYA…………….……….…1ST APPELLANT
SENIOR MANAGER, TRADE DEVELOPMENT
POPULATION SERVICES KENYA (PS-KENYA)……...2ND APPELLANT
VERSUS
MICHAEL KARANI GAKUYA …….……….……..………..RESPONDENT
RULING
A. Application
1. Vide a Motion application dated 27th March 2025, the Appellants/Applicants herein sought orders of stay of taxation of the Respondent’s Bill of Costs dated 13th December 2024 and any further proceedings pending the hearing and determination of this application and the appeal before the Kisumu Civil Appeal Court-Civil Appeal No. 238 of 2024.
2. The application was based on the grounds therein as well as the Supporting Affidavit of Allan Ngunze, Director of the Appellants/Applicants.
3. It was the Appellants’/Applicants’ case that this Court under the stewardship of Justice D. K. Kemei delivered it’s judgement on 24th February 2023 whereat it dismissed their case, and being aggrieved by the said judgment, the Appellants lodged their notice of appeal on 3rd March 2023, before the Court of Appeal.
4. The Appellants aver that whereas they had vide a Notice of Motion dated 14th March 2023 obtained orders for stay of execution pending the hearing and determination of their appeal before the Court of Appeal, the Respondent proceeded to file his Bill of Costs dated 13th December 2024, to which directions have been duly issued via orders dated 27th February 2025, wherein the same was fixed for directions on 9th April 2025. That unless the stay of taxation of the Respondent’s Bill of Costs is issued, the Appellants/Applicants stand to suffer irreparable loss and damage, and shall render their appeal nugatory if proper execution is levied against them for the said taxed costs.
5. In opposition to the Motion application, the Respondent herein filed his grounds of opposition dated 9th April 2025, wherein, he alleged that the Appellants/Applicants have failed to establish their basis for seeking the stay of taxation of the Respondent’s Bill of Costs dated 13th December 2024; that the order of stay of execution of judgement and/or decree are distinct from orders of stay of proceedings; that the ruling of this Court issued on 29th March 2023, simply did not stay proceedings in this case; that there exists no order stopping taxation of the Respondent’s Bill of Costs.
6. Vide Court directions issued on 14th July 2025, parties were ordered to canvass the application by way of written submissions. The Appellants duly complied with the Court’s directions and the Respondents opted to rely on their grounds of opposition dated 9th April 2025.
B. Determination
7. I have considered the application, the affidavit in support thereof, the grounds of opposition thereto and submissions of the applicants. The issue for determination is whether the Appellants/Applicants are entitled to stay of taxation pending appeal.
8. Order 42 Rule 6 of the Civil Procedure Rules provides that an appeal shall not operate as a stay of the judgment or ruling against which the appeal is filed. A party who wishes the have the execution of the decision appealed from stayed must therefore file an application for stay.
9. Under Order 42 Rule 6 of the Civil Procedure Rules, the Courts have wide discretion in granting stay pending appeal subject to the Appellants/Applicants satisfying the Court that substantial loss may result if the orders are not granted, that the application is timeously made and the Applicant is ready to provide such security for due performance of the decree as may be binding. The court also considers the balance of convenience under the oxygen principle as prescribed under sections 1A and 1B of the Civil Procedure Act.
10. The Applicant has not sought the stay of the decision, but rather the taxation of the Respondent’s Bill of Costs dated 13th December 2024.
11. This matter having gone on appeal, there is likely to be either additional costs against the Appellants/Applicants if the appeal is lost, or the Applicants may be discharged from the burden of payment of costs if it succeeds.
12. It therefore makes judicial sense to avoid a situation where the taxation will eventually have to be repeated or become redundant depending on the outcome of the appeal at the Court of Appeal.
13. It is for the foregoing reasons that, I find that the Motion application dated 27th March 2025, is merited and I grant orders prayed for in the application.
14. I accordingly, stay the taxation of the Bill of Costs dated 13th December 2024, filed by the Respondent/Decree Holder pending determination of Kisumu Civil Appeal Court-Civil Appeal No. 238 of 2024.
15. The costs of the application shall abide the outcome of the appeal.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 27th day of February 2026.
Mwanaisha.S. Shariff
Judge
In the presence of:
Ms Nyakongo holding brief for Ngala Awino the Appellants/Applicants
N/A by Maloba for the Respondent
Peter Machoni – Court Assistant