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ELCDismissedELC 925 of 2015· [2025] KEELC 429 (KLR)

Laly Furnishing House Limited v Kenya National Highways Authority & 2 others (Environment & Land Case 925 of 2015) [2025] KEELC 429 (KLR)

Environment and Land Court
6 February 2025
OAO. A. Angote
3,434 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to pause the taxing of a Kshs. 38 million legal costs bill, ruling a dismissed suit's judgment cannot be stayed.

What this practically means

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Executive summary

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The Plaintiff filed a Notice of Motion dated 3rd November 2023 under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 42 Rule 6 and Order 51 of the Civil Procedure Rules, seeking a stay of the assessment/taxation of the 1st and 2nd Defendants' Party and Party Bills of Costs dated 4th May 2023 (totaling Kshs. 38,075,204.80) and a stay of execution of the judgment and decree of O.A. Angote J of 27th April 2023, which had dismissed its suit with costs, pending appeal in Court of Appeal Civil Appeal No. E754 of 2023. The Plaintiff, through its director Sukhdev Singh Laly, argued that it intended to appeal the whole decision including costs, and that allowing taxation would render the appeal nugatory and cause irreparable loss. The 1st and 2nd Defendants, through Otieno Patrick, opposed, contending the application was a delaying tactic, that the judgment was a negative order incapable of execution, and that taxation before the Taxing Master would not affect the appeal. Applying established principles on stay of proceedings and stay of execution, the court held that taxation merely ascertains the quantum of costs payable and is independent of the appeal; the Plaintiff failed to demonstrate substantial loss. Further, the judgment being a negative order incapable of execution save as to costs, there was nothing to stay, and with taxation only commenced the application was premature. The application dated 3rd November 2023 was dismissed with costs to the Plaintiff.

Key legal issues

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01

Whether stay of taxation proceedings pending appeal should issue

Holding

Refused; taxation merely ascertains quantum of costs and does not prejudice the applicant or affect the appeal.

Reasoning

The court applied Deposit Protection Fund v Rosaline Njeri Macharia and Dickson Sinkeet Mapi, holding that taxation is the mandate of the Taxing Officer, the party and party bill of costs is not the subject of the appeal, and the plaintiff failed to demonstrate substantial loss if taxation proceeds.

p. 5
02

Whether stay of execution of a negative judgment is available

Holding

Refused; the judgment dismissed the suit with costs and is a negative order incapable of execution save in respect of costs.

Reasoning

Relying on Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah, the court held that a dismissal makes no demand on any party and nothing is capable of being stayed except the costs. The plaintiff's real intention was to prevent taxation and eventual execution, and with taxation only commenced, the application was premature.

p. 6

Legal principles established

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  • A negative judgment, which does not order any party to do or refrain from doing anything, is incapable of being stayed save in respect of costs.
  • The only effect of taxing a Bill of Costs is the ascertainment of the quantum of costs payable; taxation proceedings are independent of the appeal.
  • A stay of proceedings is distinct from a stay of execution and should be granted only in exceptional circumstances.

Court orders

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  1. 1.The Plaintiff's application dated November 3, 2023 is dismissed
  2. 2.The Plaintiff shall bear the costs of the application

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(e)
  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Civil Procedure RulesOrder 51 Rules 1 and 4
  • Advocates (Remuneration) (Amendment) Order 2014Schedule 6

Cases cited (11)

  • William Odhiambo Ramogi & 2 Others vs the Honourable Attorney General & 3 Others
    [2019] eKLR
  • Global Tours & Travels Limited
    Nairobi HC Winding Up Cause No. 43 of 2000
  • Deposit Protection Fund vs Rosaline Njeri Macharia
    [2006] eKLR
  • Dickson Sinkeet Mapi vs Naisenyu Pargarna Mutunkei
    [2021] eKLR
  • Wako Adan & Another vs Phyllis Wanjiru Mwangi
    [2020] eKLR
  • James Wangalwa & Another vs Agnes Naliaka Cheseto
    [2012] KEHC 1094 (KLR)
  • Silverstein N. Chesoni
    [2002] 1 KLR 867
  • Mukuma vs Abuoga
  • Kanwal Sarjit Singh Dhiman vs Keshavji Jivraj Shah
    [2008] KECA 346 (KLR)
  • Western College of Arts & Applied Sciences vs. Oranga & Others
    [1976] KLR 63
  • Halsbury's Laws of England, 4th Edition, Vol. 37
    p. 330
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 42 Rule 6(1) and (2) and Order 51 Rules 1 and 4 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Laly Furnishing House Limited v Kenya National Highways Authority & 2 others (Environment & Land Case 925 of 2015) [2025] KEELC 429 (KLR)", Case Analysis (2025). ELC 925 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/429/eng@2025-02-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.