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ELCPartially AllowedNot stated in judgment (Narok Environment & Land Court)· [2026] KEELC 4187 (KLR)

Kariankei v Nkoitiko (Environment and Land Miscellaneous Case E001 of 2025) [2026] KEELC 4187 (KLR)

Environment and Land Court
18 June 2026
3,229 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Narok court allowed an appeal to proceed against a legal costs ruling, but only froze collection on condition the full amount is deposited in a joint account within 45 days.

What this practically means

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Executive summary

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This was a Notice of Motion dated 28th November 2025 by the Applicant, Kantet Ole Kariankei, seeking leave to appeal to the Court of Appeal against a ruling of the Environment and Land Court at Narok delivered on 13th November 2025 on a taxation reference, together with a stay of execution of that ruling or the resulting Certificate of Costs, under Section 41 of the Appellate Jurisdiction Act and Rule 11(3) of the Advocates (Remuneration) Order. The Respondent, Martine Ole Nkoitiko, opposed by Grounds of Opposition and written submissions, arguing the application was res judicata since the court had already corrected the errors of principle in the taxation (striking out getting-up fees of Kshs. 333,333.33 and VAT of Kshs. 534,245.60), that no substantial loss was demonstrated under Order 42 Rule 6(2) of the Civil Procedure Rules, and that the intended appeal merely challenged judicial discretion on quantum. The court framed four issues. It held the application was not res judicata because leave to appeal and stay were neither raised nor determined in the reference. It found the intended grounds - the principle for determining instruction fees where the subject matter value is unascertainable, an unqualified person's entitlement to fees, and manifestly excessive party-and-party costs - were arguable, and granted leave. On stay, the court found no cogent evidence of substantial loss on a monetary, refundable decree but fashioned a conditional stay: the Applicant to deposit the entire decretal sum in an interest-earning joint account of the parties' advocates within 45 days, failing which the stay lapses. Each party was ordered to bear its own costs, both having succeeded in part.

Key legal issues

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01

Res judicata

Holding

The application is not res judicata because leave to appeal and stay of execution were neither raised nor determined in the reference ruling.

Reasoning

Section 7 of the Civil Procedure Act bars re-litigation of issues directly and substantially in issue in a former suit between the same parties finally determined. The court held the present application seeks leave to appeal and stay, matters distinct from the reference determination, so the plea of res judicata was misconceived.

p. 6
02

Leave to appeal under Paragraph 11(3) of the Advocates (Remuneration) Order

Holding

Leave granted because the intended appeal raises arguable questions on instruction fees, recoverability of fees and manifestly excessive costs.

Reasoning

Leave is discretionary and acts as a filter for frivolous appeals. The court need not decide whether the appeal will succeed, only that arguable questions exist. The intended grounds on valuation of subject matter, entitlement to fees and quantum were not frivolous or devoid of merit.

p. 6
03

Stay of execution pending intended appeal

Holding

Conditional stay granted on deposit of the entire decretal sum in an interest-earning joint account within 45 days, failing which the stay lapses.

Reasoning

Order 42 Rule 6(2) requires substantial loss, no unreasonable delay and security. The decree was monetary and refundable; no cogent evidence of substantial loss was tendered. The court balanced the right of appeal against the Respondent's right to the fruits of judgment and fashioned a conditional stay.

p. 7

Legal principles established

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  • An application for leave to appeal and a stay of execution pending appeal are distinct from the issues determined in the underlying reference and are therefore not barred by res judicata.
  • Leave to appeal under Paragraph 11(3) of the Advocates (Remuneration) Order is discretionary and granted where the intended appeal raises arguable questions, not where it is shown it will succeed.
  • Where leave to appeal is granted on a monetary decree, a conditional stay requiring deposit of the decretal amount balances the right of appeal with the decree-holder's right to enjoy the fruits of judgment.

Court orders

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  1. 1.Leave is hereby granted to the Applicant to appeal to the Court of Appeal against the ruling delivered on 13th November 2025.
  2. 2.There shall be a stay of execution of the Certificate of Costs and all consequential processes pending the filing and determination of the intended appeal on condition that the Applicant deposits the entire decretal sum in an interest-earning joint account in the names of the advocates for the parties within forty-five (45) days from the date of this ruling.
  3. 3.In default of compliance with order (b) above, the stay granted herein shall automatically lapse.
  4. 4.As each party has succeeded in part, each shall bear his own costs of the application.
Jurisdiction invoked
Section 41 of the Appellate Jurisdiction Act and Rule 11(3) of the Advocates (Remuneration) Order

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, "Kariankei v Nkoitiko (Environment and Land Miscellaneous Case E001 of 2025) [2026] KEELC 4187 (KLR)", Case Analysis (2026). Not stated in judgment (Narok Environment & Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4187/eng@2026-06-18

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