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ELCDismissedNot stated in the judgment (application dated 15th January 2024)· [2025] KEELC 6371 (KLR)

Kaburungo (Suing as Administrators of the Estate of Dedan Kageni Kaburungo) v Karatu & 2 others (Environment and Land Case 282 of 2016) [2025] KEELC 6371 (KLR)

High Court of Kenya
15 May 2025
JOJUDY OMANGE
960 words in judgment
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The bottom line

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Kenya's High Court confirmed that taxing a bill of costs causes no loss, so courts will rarely halt taxation just because a case is under appeal.

What this practically means

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Executive summary

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By an application dated 15th January 2024, the plaintiff sought a stay of taxation of the 2nd Defendant's bill of costs dated 11th October 2023 pending hearing and determination of Nairobi Civil Appeal No. E 310 of 2023, having been granted leave to appeal against the entire judgment, including the award of costs. The 2nd Defendant opposed, arguing the stringent conditions for stay of proceedings were unmet, no substantial loss was demonstrated, and taxation would in fact help fix security for any stay of execution. The court framed a single issue: whether the proceedings (taxation) should be stayed. Relying on Order 42 Rule 6 and the conditions in Vishram Ravji Halai v Thornton & Turpin (sufficient cause, substantial loss, security and no unreasonable delay), the court found the plaintiff neither quantified nor proved substantial loss, nor asserted the respondent could not refund any sums paid. Adopting the reasoning in Deposit Protection Fund v Rosaline Njeri Macharia, the court held that taxation of a bill of costs cannot occasion loss; it merely ascertains quantum, which forms the foundation for fixing security. The application was dismissed with costs to the 2nd Defendant.

Key legal issues

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01

Whether stay of taxation proceedings could be granted under Order 42 Rule 6

Holding

The application was dismissed because the plaintiff did not establish substantial loss, sufficient cause, or expeditious application, and taxation would aid in fixing security

Reasoning

Order 42 rule 6 requires substantial loss, no unreasonable delay, and security. The plaintiff did not quantify any loss nor assert the respondent could not refund monies. Following Deposit Protection Fund v Rosaline Njeri Macharia, the court held taxation cannot cause loss; it ascertains quantum, which forms the basis for fixing security for any stay of execution.

p. 2

Legal principles established

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  • Taxation of a bill of costs cannot occasion substantial loss to the person against whom costs are taxed; it merely ascertains the quantum payable and informs the security for a stay of execution

Court orders

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  1. 1.The application dated 15th January 2024 seeking stay of taxation of the 2nd Defendant's bill of costs is dismissed
  2. 2.Costs of the application awarded to the 2nd Defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (2)

  • Vishram Ravji Halai vs. Thornton & Turpin
    Civil Application No. Nai. 15 of 1990 [1990] KLR 365
  • Deposit Protection Fund V Rosaline Njeri Macharia
    [2006] eKLR
Jurisdiction invoked
Order 42 Rule 6 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, "Kaburungo (Suing as Administrators of the Estate of Dedan Kageni Kaburungo) v Karatu & 2 others (Environment and Land Case 282 of 2016) [2025] KEELC 6371 (KLR)", Case Analysis (2025). Not stated in the judgment (application dated 15th January 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6371/eng@2025-05-15

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