The ruling herein relates to the application dated 22 July 2024 filed by the respondents and based on the provisions of Order 42 rule 6(1) and (2), Order 50 rule 1 and 3 of the Civil Procedure Rules, Section 79G, 1A, 1B and 3A of the Civil Procedure Act and seeking orders;
- Spent.
- Spent.
- This court be pleased to stay the execution of any decree arising from the ruling delivered on 20 June 2024 pending the hearing and determination of the 1st and 2nd respondents intended to appeal in the Court of Appeal challenging the ruling delivered on 25 January 2024.
- Costs of this application be in the cause.
The application is supported by the annexed affidavit of Michael Sangoro, manager litigation and disputes of the respondent, and on grounds that by a ruling delivered on 20 June 2024 in respect to the ex parte applicant’s Bill of Costs filed on 6 February 2024, costs were taxed at ksh.879, 006 and there is the threat of execution. The Taxations arises from the ruling herein delivered on 25 January 2024 and being dissatisfied, the respondents filed a Notice of Appeal and there is Civil Appeal No.E044 of 2024 Kenya Ports Authority Board of Directors and Managing Director Kenya Ports Authority v Western Human Rights Forum, the Attorney General, Public Service Commission. The respondents are seeking a stay of execution of the said ruling and the Court of Appeal is due to deliver its ruling on 24 October 2024. The appeal is with merit and if execution is allowed to proceed, it will be rendered nugatory. There will be no prejudice upon the ex-parte applicant if the stay is allowed pending the hearing and determination of the appeal.
In his affidavit, Sangoro avers that following the ruling herein delivered on 25 January 2024, the respondents were aggrieved and filed an appeal to the Court of Appeal. However, the ex parte applicant proceeded and filed its bill of costs which was taxed and in a ruling delivered on 20 June 2024 awarded costs. The ex parte applicant has written to the respondent demanding payment of costs with threats of execution if the costs are not paid they will proceed with execution. To allow the court of appeal to hear the parties on the merit, it is in the interests of justice to allow the orders sought herein.
In reply, the ex parte applicant filed the Replying Affidavit of John Abura and averred that the applicant by the respondent is an abuse of the court process and an afterthought. The bill of costs was taxed in favour of the ex parte applicant on 20 June 2024, and the procedure to be followed by an aggrieved party challenging taxation is provided under paragraph 11 of the Advocates Remuneration Order. Any grievance from a taxation ruling can only be addressed by way of a reference to a Judge following paragraph 11 of the Advocates Remuneration Order.
Where the respondent wanted to object to the ruling by the taxing master, no reference has been filed to this court. The bill of costs has since been taxed and a Certificate of Costs issued. The only bar from execution is where the Certificate of Costs is set aside.
The instant application is based on the provisions of Order 42 Rule 6 of the Civil Procedure Rules which provisions do not apply in the instant case. In any case, the conditions necessary under Order 42 rules 1 and 2 have not been addressed or met by the respondent to rely on the same to seek a stay of execution of the taxing master ruling of 20 June 2024 or this court ruling of 25 January 2024. The delay has not been addressed. There is no sufficient cause demonstrated to justify the application or deposit of security and the orders sought should be dismissed with costs.
Both interested parties attended.
The 3rd respondent did not attend these proceedings.
The 1st interested party opted to remain neutral.
The 2nd respondent supported the application by the respondents.
The respondents and ex-parte applicant made oral submissions in court.
Determination
The substantive issue addressed by the 1st and 2nd respondents is that an order of stay of execution be issued against the decree from the ruling delivered on 20 June 2024 pending the hearing and determination of the intended appeal in the Court of Appeal challenging the ruling delivered on 25 January 2024.
The subject ruling sought to be stayed relates to the taxing master ruling on the bill of costs delivered on 20 June 2024. This is not the ruling of the court.
A taxing master is allowed to tax a bill of costs and deliver a ruling. If aggrieved or dissatisfied, as submitted by the ex parte applicant, a party should file a reference with the Judge under paragraph 11 of the Advocates Remuneration Order. In the case of National Bank of Kenya v Rachuonyo & Rachuonyo Advocates [2021] eKLR and Ahmednasir Abdikadir & Company Advocates v National Bank of Kenya Limited [2007] eKLR that under paragraph 11 of The Advocates (Remuneration) Order an applicant should move the court to set aside, review or amend the taxing master ruling and there would be need to set aside the certificate of costs if the objection to taxation was successful that indeed then ought to be one of the prayers sought when a party seeks to challenge taxation.
No reference was filed to challenge the Bill of Costs ruling, and the Certificate of Costs has since been issued, which the respondent has not addressed.
The application to this extent is fatally defective.
To proceed and rely on the ruling herein delivered on 25 January 2025 is to avoid the conditions under Order 42 Rule 6. Upon the court ruling in January 2024, no application was filed without delay to stay the orders therefrom. This delay is not addressed.
The respondents acknowledge that E044 of 2024 is before the Court of Appeal and is due for ruling on 24 October 2024. Such a matter should be allowed to take its course as the orders sought herein are without merit.
The application dated 22 July 2024 is without merit and is hereby dismissed. Costs in the cause.
Delivered in open court at Mombasa on this 17 day of October 2024.
M. MBARŨ
JUDGE