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ELCDismissedELCL PET E002 OF 2023· [2026] KEELC 4646 (KLR)

Del Monte Kenya Ltd v Speaker of the National Assembly & 3 others; Kandara Residence Association Otherwise Known As Kandara Residents’ Association & 131 others (Interested Parties) (Environment and Land Petition E002 of 2023) [2026] KEELC 4646 (KLR)

Environment and Land Court
22 July 2026
1,629 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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 16-3-2026 by the Petitioner seeking a stay of taxation proceedings before the Deputy Registrar pending determination of its appeal (No. COACA E217 of 2025) in the Court of Appeal at Nyeri. The appeal challenges the costs awarded to the interested party following the dismissal of the Petitioner's petition on 30-9-2025; the interested party had filed a bill of costs for Kshs. 975,113,854.34. The interested party opposed, arguing the motion was premature since no taxation had occurred, that taxation is not execution, and that the Petitioner should first undergo taxation before invoking paragraph 11 of the Advocates Remuneration Order. The Court framed four issues. On the first, it held that absent a specific statutory provision, its inherent jurisdiction to stay taxation arises only upon sufficient cause such as denial of fair hearing, none of which was alleged. On the second, it classified taxation as part of the execution process and applied the cumulative three-limb test in Order 42 rule 6(2); the Petitioner satisfied only timeous filing, proving neither substantial loss nor offering security. On the third, the Court held its only jurisdiction over taxation lies under paragraph 11 of the Advocates Remuneration Order, which had not ripened as taxation had not occurred, following the Karume exhaustion principle. On the fourth, it held that with a stay application pending in the Court of Appeal, this Court was functus officio. The motion was dismissed with costs.

Key legal issues

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01

Whether the Court has power to stay taxation of a bill of costs pending before the Deputy Registrar

Holding

The Court has inherent jurisdiction under Sections 1A, 1B and 3A of the Civil Procedure Act but no specific statutory provision allows it to stay taxation; the inherent jurisdiction is exercised only where sufficient cause is shown, such as denial of fair hearing or due process before the Deputy Registrar. The Petitioner made no such allegations, so no stay was granted.

Reasoning

The Court acknowledged its inherent jurisdiction to do justice but noted the absence of any specific provision permitting a stay of taxation. Inherent jurisdiction must be exercised only upon sufficient cause being shown. The Petitioner neither alleged denial of a fair hearing nor that due process would not be followed before the Deputy Registrar. Absent credible evidence of such cause, the Court declined to intervene, reasoning that the Petitioner would be heard at the taxation.

p. 3
02

Whether the motion meets the threshold for stay of execution under Order 42 rule 6(2) of the Civil Procedure Rules

Holding

The motion did not meet the threshold. While it was filed timeously, the Petitioner proved neither substantial loss (taxation being a normal, legal conclusion of a suit) nor offered security for the due performance of any decree; only one of three cumulative conditions was satisfied.

Reasoning

The Court classified taxation as part of the execution process, so the Order 42 rule 6(2) threshold applied. The three cumulative conditions are substantial loss, timeous filing, and security. The Petitioner filed timeously (notice served 10-3-2026, motion filed 17-3-2026) but failed on substantial loss since it would be heard at taxation, and it offered no security for the due performance of any decree. One condition out of three could not suffice.

p. 4
03

Whether the Petitioner exhausted the procedure under paragraph 11 of the Advocates Remuneration Order

Holding

The Petitioner had not. The Court's only jurisdiction in relation to taxation is under paragraph 11 of the Advocates Remuneration Order, and that jurisdiction has not ripened because taxation has not yet taken place. The Petitioner must first undergo taxation and, if aggrieved, then invoke paragraph 11.

Reasoning

Relying on the Speaker of the National Assembly vs James Njenga Karume, the Court held that where a clear procedure for redress is prescribed, it must be strictly followed and exhausted before alternative remedies are sought. Paragraph 11 of the Advocates Remuneration Order is the only avenue for this Court to intervene in taxation, and since no taxation has occurred, the Petitioner's grievance is premature. It must follow that procedure after taxation, if need be.

p. 5
04

Whether the Court should entertain a stay application when a similar application is pending before the Court of Appeal

Holding

The Court declined to entertain the stay application because the pending appeal before the Court of Appeal already sought stay of execution of this Court's decree; once the Court of Appeal exercises its jurisdiction over the appeal, this Court becomes functus officio.

Reasoning

The Court observed that the appeal before the Court of Appeal (No. COACA E217 of 2025) includes a prayer for stay of execution of this Court's judgment and decree. Since the appellate court has commenced exercising its jurisdiction over matters arising from this Court's decree, this Court is barred from dealing with the same subject and is functus officio, making it improper to entertain a parallel stay application.

p. 5

Legal principles established

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  • In the absence of a specific statutory provision, the inherent jurisdiction to stay taxation of a bill of costs will only be exercised where sufficient cause, such as denial of fair hearing or due process, is credibly shown.
  • Taxation of a bill of costs is part of the execution process, kick-starts execution, and a post-judgment motion for stay of taxation must therefore meet the threshold in Order 42 rule 6(2) of the Civil Procedure Rules.
  • All three conditions in Order 42 rule 6(2) - substantial loss, timeous filing, and security - must be met cumulatively before a stay of execution can be granted.
  • The only jurisdiction the Environment and Land Court has in relation to taxation is under paragraph 11 of the Advocates Remuneration Order, and that jurisdiction does not ripen until taxation has taken place.
  • Where the law provides a specific procedure for the redress of a particular grievance, that procedure must be strictly followed and exhausted before an aggrieved party can seek an alternative remedy.
  • Once the Court of Appeal starts exercising its jurisdiction in an appeal arising from the lower court's decree, the lower court becomes functus officio and cannot properly deal with an application for stay of execution.

Court orders

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  1. 1.The notice of motion dated 16-3-2026 is dismissed with costs to the 1st interested party.
On appeal from
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null
Jurisdiction invoked
Sections 3, 13(5) of the Environment and Land Court Act, Sections 1A, 1B and 3A of the Civil Procedure Act, Order 51 rule 1 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, "Del Monte Kenya Ltd v Speaker of the National Assembly & 3 others; Kandara Residence Association Otherwise Known As Kandara Residents’ Association & 131 others (Interested Parties) (Environment and Land Petition E002 of 2023) [2026] KEELC 4646 (KLR)", Case Analysis (2026). ELCL PET E002 OF 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4646/eng@2026-07-22

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