RULING:
1. I have considered the Notice of Motion Application dated 16.10.23 together with the supporting affidavit sworn on even date and the replying affidavit dated 16th January, 2024 in opposition to the same, the submissions counsel, and the relevant law.
2. The applicant submitted that the ruling of the taxing master ought to be stayed because the same was not dismissed based on merit, but rather, on the basis that there is a fee agreement between the parties, which the applicant wishes to enforce.
3. In opposition to the same, counsel for the respondent submitted that the application is improper in law because the procedure to challenge such a decision is by way of a reference, not a new suit. The application is therefore irregular and an abuse of court process.
4. Counsel additionally submitted that there must be substantive prayer in the plaint relating to what an applicant is seeking in the interim, and no such prayer exists.
5. Having considered the above, I note that the relevant law is as follows:
6. In the case of Kenya Wildlife Service Vs James Mutembei (2019) eKLR, Gikonyo J held that:
“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.”
This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.”
“It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case”.
7. Further, in the persuasive authority in Global Tours & Travels Limited; Nairobi HC Winding up Cause No. 43 of 2000 Ringera J, (as he then was) stated that: -
“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously”.
8. Guided by the above, I am persuaded that a stay of proceedings is a discretionary power exercisable by the court upon consideration of the facts and circumstances of each case.
9. Based on the present facts, I am persuaded that a determination was made by the taxing master, and that accordingly, the proper procedure to challenge such a decision is by way of reference in the first instance. This was not done. I am therefore satisfied that the present application is premature and or irregular.
10. Based on the reasons above and the further reasons stated by counsel, I am satisfied that the test for a stay of proceedings as set out above has not been met.
11. Accordingly, I find that the Notice of Motion Application dated 16.10.23 is without merit and the same is dismissed with costs.