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)

3. The sole issue for determination is whether the court should stay the taxation proceedings. The application is brought under Order 42 Rule 6 which provides; 1. “No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for suficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. 2. No order for stay of execution shall be made under subrule (1) unless— (a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and (b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.” 4. These principles were summarized in Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365, wherein the Court of Appeal held that; “whereas the Court of Appeal’s power to grant stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 42 rule 6 of the Civil Procedure Rules is fettered by three conditions namely, establishment of suficient cause, satisfaction of substantial loss and the furnishing of security. Further the application must be made without unreasonable delay.” 5. For the court to exercises its discretion in favour of the Plaintifi and order stay of taxation proceedings, the Plaintifi needed first and foremost to establish substantial loss. The Plaintifi/ applicant avers that she is likely to sufier substantial loss if the costs are taxed. She does not quantify this loss. She also does not prove or even assert that if the taxation takes place the 2nd Defendant/ Respondent would not be in a position to refund any amount paid to satisfy a monetary decree issued pursuant to the taxation of costs. 6. In any event taxation of the bill of costs would assist the court in determining the question of security which is a mandatory requirement for grant of stay in this court. In the case of Deposit Protection Fund V Rosaline Njeri Macharia [2006] eKLR, the Court while dealing with an application of stay of taxation proceedings, observed as follows:’ Going back to the 2nd defendant’s arguments, I note them as saying that if the court did not grant an order for stay of the proceedings, the applicant would not sufier substantial loss, on account of the taxation of the defendants’ Bills of Costs. When faced with those submissions, the applicant did not tell the court how the taxation of the defendants’ Bill of Costs would cause them substantial loss. To my mind, the taxation of a Bill of Costs cannot occasion any loss to the person against whom it is taxed. Therefore, the issue of taxation causing substantial loss does not even arise. The only efiect of taxing a Bill of Costs is the ascertainment of the quantum of costs payable by one person to another. Thereafter, the party whose costs had been ascertained could take out execution proceedings. The applicant did not, in my considered view, make out a case for stay of proceedings, and in particular a stay of the taxation of the defendants’ Bills of Costs. Furthermore, if the learned taxing oficer were to proceed to tax the defendants’ Bills of Costs, the sums would be ascertained, and that would be the foundation upon which this court could base the size of the security which the applicant would need to raise, if the court did order that there be a stay of execution.’ Emphasis Mine https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6371/eng@2025-05-15 2

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7. I am persuaded by this argument and find that the Plaintifi has not established suficient cause that would justify this court interfering with the right of the 2nd Defendant to be heard on the bill of costs. I find that the application is not merited and is dismissed with costs. JUDGEMENT SIGNED DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 15TH DAY OF MAY 2025 JUDY OMANGE JUDGE In the presence of Court Assistant Catherine Mr. Omoiti for Plaintifi https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6371/eng@2025-05-15 3

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