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ELCDismissedRuling on Notice of Motion dated 26th January 2024 in the struck-out suit (original suit from plaint dated 19th July 2021)· [2025] KEELC 4948 (KLR)

Mbugua v Mathara Holdings Limited & another (Environment and Land Case E072 of 2021) [2025] KEELC 4948 (KLR)

High Court of Kenya
3 July 2025
JOJ. M Onyango
2,058 words in judgment
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The bottom line

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Kenya's High Court confirmed that a pending appeal does not stop the taxing of costs, because taxation itself causes no loss and execution can be stayed later.

What this practically means

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Executive summary

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This ruling by J. M Onyango J determines a Notice of Motion dated 26th January 2024 in which the Plaintiff/Applicant sought a stay of taxation proceedings pending the hearing and determination of Nairobi Civil Appeal No. E605 of 2022 against a ruling of Eboso J dated 9th May 2022, in which the Applicant's suit was struck out for lack of locus standi and costs were awarded to the Defendants. The 1st Respondent opposed the application, contending that the Applicant lacked locus to bring it, that the court had become functus officio, and that the Court of Appeal had already dismissed a similar stay application (Civil Application E169 of 2022, ruling dated 4th August 2023) on the ground that the orders sought to be stayed were negative orders incapable of being stayed. The court framed a single issue: whether it should stay the taxation proceedings pending appeal. Applying Order 42 Rule 6(2) of the Civil Procedure Rules, the Global Tours and Travels principles, and the authorities in Deposit Protection Fund v Rosaline Njeri Macharia and Pius Musimba Muasya, the court held that taxation merely ascertains the quantum of costs and cannot occasion substantial loss to the party against whom costs are taxed. No sufficient reasons had been advanced to halt taxation, and the Applicant would remain free to apply for stay of execution once the costs were ascertained. The application was accordingly dismissed with costs to the Respondents.

Key legal issues

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01

Whether taxation proceedings should be stayed pending appeal against the ruling awarding costs

Holding

The application for stay of taxation proceedings was dismissed; taxation may proceed since it does not occasion loss and the Applicant can later seek stay of execution.

Reasoning

The court applied Order 42 Rule 6(2) and the Global Tours and Travels principles, and relied on Deposit Protection Fund v Rosaline Njeri Macharia and Pius Musimba Muasya to hold that taxation merely ascertains the quantum of costs and cannot cause substantial loss. Once costs are ascertained and judgment entered on the ruling, the Applicant remains free to apply for stay of execution of the decree.

p. 4

Legal principles established

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  • Whether to grant a stay of proceedings is a judicial discretion exercised in the interest of justice, weighing expeditious disposal, arguability of the appeal, judicial time and expeditiousness of the application.
  • Taxation of a Bill of Costs cannot occasion substantial loss to the party against whom costs are taxed; it only ascertains the quantum payable.

Court orders

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  1. 1.The application dated 26th January 2024 is dismissed with costs to the Respondents.

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Constitution of Kenya (misdescribed as Civil Procedure Rules)Article 50(1) and Article 159(2)(d)

Cases cited (4)

  • Global Tours and Travels Limited, Nairobi Winding Up Cause No. 43 of 2000
  • Kenya Power & Lighting Company Ltd vs Esther Wanjiru Wokabi
    2014 eKLR
  • Deposit Protection Fund vs Rosaline Njeri Macharia
    [2006] eKLR
  • Pius Musimba Muasya & 15 Others v Onesmus Ndolo Ngeta & 3 Others
    [2022] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 42 Rule 6(2) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mbugua v Mathara Holdings Limited & another (Environment and Land Case E072 of 2021) [2025] KEELC 4948 (KLR)", Case Analysis (2025). Ruling on Notice of Motion dated 26th January 2024 in the struck-out suit (original suit from plaint dated 19th July 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4948/eng@2025-07-03

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