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ELCAllowedNot stated in the judgment· [2026] KEELC 1649 (KLR)

Njoroge (Suing as the personal representative of the Estate of Anjelo Kanyuanjohi Macharia - Deceased) v Land Registrar & 2 others (Environment and Land Case 47 of 2017) [2026] KEELC 1649 (KLR)

Environment and Land Court
23 March 2026
814 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court can freeze collection of taxed legal costs while an appeal is pending, even without a formal challenge to the costs.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Murang'a (M.N. Gicheru J) determines a notice of motion dated 26-8-2025 by the Plaintiff seeking stay of execution of a certificate of costs dated 26/7/2024 pending the hearing and determination of appeal Nyeri Court of Appeal E044 of 2023, together with costs in the cause. The motion was grounded on the assertion that the earlier stay was spent, that the plaintiff had a strong appeal, and that execution would render the appeal nugatory and violate the plaintiff's fair-hearing rights under Article 50(1) of the Constitution. The 2nd and 3rd Defendants opposed the motion through a preliminary objection contending that the court lacked jurisdiction because no notice of appeal had been filed against the taxed costs, as required by Order 42 rule 6(4) of the Civil Procedure Rules read with rule 11(3) of the Advocates Remuneration Order 2009, and through the affidavit of Davis Mulani arguing that the plaintiff had not prosecuted his appeal and had not proved substantial loss. The court framed three issues: whether a stay application under Order 42 depends on a reference under the Advocates Remuneration Order; whether a notice of appeal was a precondition to jurisdiction; and whether substantial loss was proved. The court held that stay may be granted irrespective of a reference, that no notice of appeal was required, and that substantial loss was demonstrated since the respondents were already in occupation of the suit land while the plaintiff risked escalating costs. The motion was allowed in terms of prayer 4, with costs in the cause.

Key legal issues

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01

Whether stay of execution of taxed costs depends on a reference under the Advocates Remuneration Order

Holding

Stay of execution is not dependent on a reference; the pending appeal forms the substratum of the cause of action.

Reasoning

The court reasoned that if there is no reference, the applicant is not disputing the quantum of taxed costs, but the pending appeal to the Court of Appeal forms the substratum of the cause. If the appeal succeeds, the costs award would abide its outcome. The existence or otherwise of a reference on the taxed costs is therefore immaterial to the jurisdiction to grant stay under Order 42.

p. 2
02

Whether a notice of appeal against taxed costs was a precondition to jurisdiction under Order 42

Holding

No notice of appeal was required for the court to assume jurisdiction under Order 42.

Reasoning

The preliminary objection invoked Order 42 rule 6(4) as read with rule 11(3) of the Advocates Remuneration Order 2009, arguing that absent a notice of appeal against the taxed costs the court could not assume jurisdiction. The court found the issue closely tied to the first and held that no notice of appeal needed to be filed before the court could exercise jurisdiction under Order 42. The objection was thereby rejected.

p. 2
03

Whether substantial loss was proved to warrant stay

Holding

Substantial loss was established; the plaintiff would have nothing to show for his litigation other than escalating costs if the appeal succeeded and execution proceeded.

Reasoning

The court relied on its earlier injunction ruling of 22-7-2025 in which it observed that if the appeal succeeded the entire decree could be set aside. The respondents were in occupation of the suit land, so they had nothing to lose, while the plaintiff risked paying escalating costs if appeal No. E044 of 2023 succeeded. Fairness therefore favoured allowing the motion to maintain the status quo pending the appeal.

p. 3

Legal principles established

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  • An application for stay of execution under Order 42 may be granted irrespective of whether a reference against taxed costs has been filed under the Advocates Remuneration Order.
  • No notice of appeal against taxed costs is a precondition to the court assuming jurisdiction under Order 42 to grant stay of execution.

Court orders

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  1. 1.Stay of execution of the certificate of costs dated 26/7/2024 pending the hearing and determination of the appeal in Nyeri Court of Appeal E044 of 2023
  2. 2.Costs in the cause
Jurisdiction invoked
Sections 3A and 63(c) and (e) of the Civil Procedure Act and Order 42 rule 6(1) and 43 of the Civil Procedure Rules 2010

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, "Njoroge (Suing as the personal representative of the Estate of Anjelo Kanyuanjohi Macharia - Deceased) v Land Registrar & 2 others (Environment and Land Case 47 of 2017) [2026] KEELC 1649 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1649/eng@2026-03-23

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