Mega Garments Industries Kenya Ltd v Opolo and Opolo Associates Advocates

Misc. Application No. E141 Of 2025 1. Before the Court is the Client/Applicant’s Notice of Motion dated 13th April 2026. It is expressed to be brought under sections 1A, 1B and 3A of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules, 2010, “Rule 11” of the Advocates Remuneration Order, and all other enabling provisions of the law. For convenience, the Client/Applicant, Mega Garments Industries Kenya Ltd, shall hereinafter be referred to as Advocate/Respondent, “the Applicant”, and Opolo and Associates Opolo the Advocates, as “the Respondent”. 2. The Applicant seeks the following orders: (1) That the application be certified urgent and service be dispensed with in the first instance; (2) That pending the hearing and determination of the application inter partes, there be an order for stay of all proceedings in Misc. Application Cause No. E141 of 2025: Opolo and Opolo Associates Advocates v Mega Garments Industries Kenya Ltd; (3) That pending the hearing and determination of the intended appeal arising from the ruling of Honourable Justice Monica Mbaru delivered on 19th March 2026, 2

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Misc. Application No. E141 Of 2025 there be an order for stay of all proceedings in the said Misc. Application Cause No. E141 of 2025; and (4) That the costs of the application be provided for. 3. Prayers (1) and (2) are spent. What remains for determination is prayer (3), and the attendant prayer on costs. The application is premised on the grounds set out on its face and on the supporting affidavit sworn on 13th April 2026 by Gikandi Ngibuini, Advocate, who has the conduct of the matter on behalf of the Applicant. It is opposed through a replying affidavit sworn on 17th April 2026 by Opolo Akinyi, Advocate, of the Respondent firm. Background 4. The genesis of the application lies in the Respondent’s Chamber Summons dated 8th December 2025, by which the Respondent invoked the reference procedure under paragraph 11 of the Advocates Remuneration Order (referred to by the Applicant throughout as “Rule 11”) to challenge an award of costs, which the Applicant describes as having been made by the Chief Magistrate’s Court at Mombasa. 3

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Misc. Application No. E141 Of 2025 5. By a Notice of Preliminary Objection dated 15th January 2026, the Applicant challenged the competence of the reference, contending that this Court lacks jurisdiction to entertain it, since the reference procedure lies only against the decision of a taxing officer within the meaning of paragraph 10 of the Advocates Remuneration Order, and not against a determination on costs by a subordinate court. By a ruling delivered on 19th March 2026, the Honourable Lady Justice Monica Mbaru dismissed the Preliminary Objection and directed that the reference proceeds to hearing. That ruling provoked the intended appeal and, in turn, the present application. The Applicant’s Case (a) The grounds on the face of the application 6. The grounds upon which the application is premised, as they emerge on its face, are, in summary, these: (i) That being aggrieved by the ruling of 19th March 2026, the Applicant filed a Notice of Appeal on that very date, and simultaneously applied for certified copies of the ruling and proceedings. 4

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Misc. Application No. E141 Of 2025 (ii) That the intended appeal raises a fundamental and dispositive question of law, namely, whether reference under “Rule 11” of Advocates the a Remuneration Order, 2014 can competently be brought in respect of a determination of an award of costs made by the Chief Magistrate’s Court, which is a subordinate court, as opposed to a taxation conducted by a duly constituted taxing officer within the High Court. (iii) That “Rule 11” is a special and limited procedure designed exclusively to challenge the decisions of a taxing officer; that a trial magistrate determining costs in the course of subordinate court proceedings does not sit as a taxing officer within the meaning of paragraph 10 of the Order, and such a determination does not constitute a taxation from which a reference may lie; and that the correct remedy available to a party aggrieved by such a determination is an appeal. (iv) That the appeal raises serious, weighty and arguable issues of law going to jurisdiction; that jurisdiction goes to the root of proceedings; and that where it is 5

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Misc. Application No. E141 Of 2025 challenged, it ought to be determined conclusively before the matter proceeds any further. (v) That unless a stay is granted, the reference will proceed to hearing and determination, rendering the intended appeal nugatory and occasioning a waste of judicial time should the Court of Appeal ultimately find that this Court lacks jurisdiction. (vi) That proceeding with the reference in the face of a pending appeal on jurisdiction will expose the Applicant to prejudice, unnecessary costs, and the risk of participating in proceedings that may ultimately be declared a nullity; that the Applicant stands to suffer substantial prejudice if the stay is not granted, whereas the Respondent will suffer no prejudice that cannot be compensated by an award of costs. (vii)That the application has been made timeously and without unreasonable delay, and that it is in the interests of justice, fairness and the overriding objective that the proceedings be stayed pending the hearing and determination of the intended appeal. (b) The supporting affidavit 6

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Misc. Application No. E141 Of 2025 7. In the supporting affidavit, Mr. Ngibuini depones that the effect of the ruling of 19th March 2026 is that the reference is now set down to proceed for hearing and determination; that being dissatisfied with the entirety of the decision, the Applicant lodged a Notice of Appeal on 19th March 2026, a copy of which he annexes and marks “GN-1”; and that the Applicant additionally applied for certified copies of the ruling and proceedings to facilitate the preparation and filing of the intended appeal, the letter of request being annexed and marked “GN-2”. 8. He depones further that the intended appeal raises a pure question of jurisdiction, namely whether the proceedings herein are properly before the Court by way of a reference under “Rule 11”; that the decision sought to be impugned by the Respondent arises from an award of costs made by a subordinate court in the exercise of its trial jurisdiction, and not from a taxation conducted by a taxing officer within the meaning of paragraphs 10 and 11 of the Advocates Remuneration Order; and that the only lawful recourse available to a party aggrieved by such a determination is an appeal. 7

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Misc. Application No. E141 Of 2025 9. He contends that unless the proceedings herein are stayed, the reference will proceed to hearing and determination notwithstanding that the issue of jurisdiction is pending before the appellate court; that there is a real likelihood that the Court of Appeal may ultimately find that the proceedings were improperly instituted, thereby rendering any steps taken in the interim nugatory; that in the circumstances the Applicant stands to suffer prejudice through being subjected to proceedings that may ultimately be declared a nullity, in addition to incurring unnecessary costs; and that the application has been brought expeditiously and in good faith, for the sole purpose of preserving the subject matter of the intended appeal. The Respondent’s Opposition 10. In the replying affidavit, Ms. Opolo Akinyi depones that the application is misconceived, frivolous and an abuse of the process of the Court. She asserts that the dismissal of the Preliminary Objection means that the matter should proceed to hearing on its merits, and that an appeal 8

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Misc. Application No. E141 Of 2025 against an interlocutory ruling does not justify stalling the proceedings indefinitely. 11. She depones that a stay of proceedings is a weighty judicial action which should only be granted in the clearest of cases, and that courts have consistently held that the power to grant it should be exercised sparingly. She contends that the Applicant has not demonstrated how the intended appeal would be rendered nugatory if the proceedings continue; that, to the contrary, it is in the interest of justice that the matter proceeds expeditiously in line with Article 159(2)(b) of the Constitution, which requires that justice be administered without delay; and that the application is intended to delay and deny the Respondent the fruits of justice, contrary to the overriding objective. 12. In the alternative, she urges that should the Court be inclined to grant a stay, the same ought to be conditional upon the Applicant depositing in court, as security, the sum of Kshs. 1,575,950/=, so as to balance the interests of both parties. She depones that the Respondent is entitled to enjoy the fruits of its judgment, and that granting a stay 9

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Misc. Application No. E141 Of 2025 without security would unjustly prejudice it, particularly considering that the Applicant, at paragraph 4 of its reply to the Respondent’s application, dated 16th January 2026, conceded that the taxed sum of Kshs. 1,575,950/= was awarded lawfully, judiciously and in line with the principles of taxation. She urges that the application be dismissed with costs. The Parties’ Submissions (a) The Applicant’s submissions 13. The Applicant’s written submissions open by placing what counsel terms the factual matrix before the Court. It is submitted that the award of costs which the Respondent seeks to challenge by way of reference did not arise from a taxation exercise conducted by a taxing officer constituted under the Advocates Remuneration Order, but from the determination of costs by a trial magistrate in the exercise of the subordinate court’s ordinary trial jurisdiction; that the Applicant’s competence of Preliminary the Objection reference on challenging that account the was dismissed on 19th March 2026; that a Notice of Appeal was 10

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Misc. Application No. E141 Of 2025 lodged that very day; and that the present application followed promptly. 14. On the law, counsel submits that the law governing applications for stay of proceedings pending appeal, although not expressly codified in terms that enumerate the conditions specific to a stay of proceedings, is well settled through a consistent body of judicial authority. Order 42 Rule 6 is acknowledged to be the procedural foundation of the application. Counsel concedes that the conditions enumerated in Order 42 Rule 6(2) relate primarily to stay of execution, but urges that in the matter of a stay of proceedings the Court is required to look beyond those conditions and to exercise its discretion by reference to the broader principles developed by the superior courts, the overarching consideration being that the appeal should not be rendered nugatory. 15. It is submitted that the discretion must be exercised judiciously, with due regard to the interests of justice and the respective positions of the parties; that the inquiry at this stage is emphatically not whether the appeal will ultimately succeed, but the narrower question of whether it 11

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Misc. Application No. E141 Of 2025 is arguable and whether, absent a stay, it will be rendered nugatory; and that the Court must be careful not to descend into the merits of the appeal or to pre-empt the judgment of the appellate court. 16. On arguability, reliance is placed on Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union (Kenya) (Civil Application 133 of 2015) [2015] KECA 353 (KLR), for the proposition that an arguable appeal need only raise a single bona fide point worthy of consideration and need not be one that must necessarily succeed; and on UAP Provincial Insurance Co Ltd v Michael John Beckett [2004] KECA 26 (KLR), for the proposition that all that an applicant is required to show is an arguable appeal which is not frivolous, and that the appeal will be rendered nugatory if the stay of proceedings is not granted. Counsel characterises these two conditions as conjunctive but not onerous. 17. Counsel further cites Niazsons (K) Ltd v China Road & Bridge Corporation (Kenya) [2001] eKLR, as cited in Port Florence Community Health Care v Crown Health Care Limited [2022] KEHC 2848 (KLR), where it was held that 12

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Misc. Application No. E141 Of 2025 where the appeal may have very serious effects on the entire case, such that if a stay of proceedings is not granted the result of the appeal may well render the orders made nugatory and the exercise futile, a stay should be granted. It is submitted that once it is shown that the appeal is arguable and that the proceedings, if unchecked, will “swallow the appeal whole”, the grant of a stay ceases to be a matter of indulgence and becomes a matter of justice. 18. The Applicant identifies what it terms the single most important consideration in the application, being the nature of the question raised in the intended appeal, which it says is purely and entirely jurisdictional. Reliance is placed on Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR) for the proposition that a court’s jurisdiction flows from the Constitution, legislation, or both, and that a court cannot arrogate to itself jurisdiction exceeding that conferred upon it by law. It is submitted that this Court, being a court of statute, can only entertain a reference if its power to do so is anchored in the text of the Advocates Remuneration Order. 13

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Misc. Application No. E141 Of 2025 19. Counsel submits that, properly and literally read, “Rule 11” is a provision of limited and defined scope; that it is not a general appellate mechanism against every determination touching on costs; and that the operative expression, “the decision of a taxing officer”, is neither ambiguous nor susceptible of expansion by purposive construction. The literal rule of interpretation is invoked through Jonnah Tusasirwe & 10 others v Council of Legal Education & 3 others [2017] KEHC 7809 (KLR), and through the dictum of Tindal CJ in the Sussex Peerage Case (1844) 11 Cl & F 85, as cited in Sony Holdings Ltd v Registrar of Trade Marks & another [2015] KECA 904 (KLR). 20. Responding to the Respondent’s contention that the intended appeal is against an interlocutory ruling, counsel submits that a question of jurisdiction is never merely interlocutory, but always fundamental and final in its implications, and invokes the celebrated dictum of Nyarangi JA in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 that jurisdiction is everything, and that a court downs its tools the moment it holds the view that it is without jurisdiction. It is submitted that if the reference is heard and determined and the Court 14

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Misc. Application No. E141 Of 2025 of Appeal subsequently finds that this Court lacked jurisdiction, the entire exercise will have been a nullity from start to finish, and the Applicant will have been subjected to the indignity and expense of participating in proceedings that never had any legal foundation. 21. On the Respondent’s invocation of Article 159(2)(b) of the Constitution, counsel submits that the argument inverts the principle; that the Article is concerned with avoiding unnecessary delays in genuine and properly constituted proceedings, and cannot be deployed as a shield to protect proceedings whose very legitimacy is under challenge; and that expedition in proceedings that may never have been properly constituted is “not justice but the simulacrum of justice”. 22. On substantial loss, it is submitted that the harm apprehended is not abstract or speculative, but concrete, foreseeable and irreversible: that if the reference is heard and determined before the appeal is resolved, the Applicant will have been compelled to participate in proceedings that may subsequently be declared a nullity, and will have incurred costs, expended resources and 15

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Misc. Application No. E141 Of 2025 potentially suffered adverse orders, all in proceedings that ought never to have been heard. 23. On the Respondent’s proposal for security, counsel submits that the imposition of security is appropriate only where there is a genuine risk of dissipation of assets or real prejudice to the respondent, and where the subject matter of the stay is a monetary decree capable of execution; whereas here, the subject matter is a pending reference, with no decree to execute. It is further submitted, with reference to the Applicant’s replying affidavit dated 16th January 2026, that a total sum of Kshs. 2,500,000/= had been paid on account of legal fees before the taxation, as evidenced by the receipts and statements marked “DNK-1”, under a written Retainer Agreement dated 1st July 2020 marked “DNK-2”, and that upon a set-off of the taxed sum of Kshs. 1,575,950/= against that payment, nothing remains due. 24. In conclusion, it is urged that this is a paradigm case for the grant of a stay; that the application was filed promptly, “on the very day the Notice of Appeal was lodged”; that the Respondent faces no real prejudice, the subject matter of 16

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Misc. Application No. E141 Of 2025 the reference remaining intact; that the balance of convenience overwhelmingly favours a stay; and that the stay be granted without any condition as to security. (b) The Respondent’s submissions 25. The Respondent’s written submissions are dated 21st May 2026. They rely on the replying affidavit in its entirety. The Respondent submits, at the very outset, that the Applicant has only filed a Notice of Appeal, without a Memorandum of Appeal; that a Notice of Appeal is what initiates the appellate process and signals an intention to appeal, but does not by itself demonstrate the grounds or the arguability of the appeal; and that the application is, accordingly, premature, lacking in merit, and prejudicial to the Respondent’s right to the expeditious disposal of the proceedings. 26. The Respondent frames two issues for determination: whether a Notice of Appeal alone suffices to warrant a stay of proceedings; and whether security is necessary if a stay is granted. On the first, it is submitted that a notice of appeal does not of itself warrant the grant of a stay; that the Applicant must demonstrate substantial loss, show that 17

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Misc. Application No. E141 Of 2025 the application was filed without unreasonable delay, and provide security; that a stay of proceedings is discretionary and is granted only in the clearest of cases; and that the Applicant must clearly demonstrate the loss it is likely to suffer if the stay is not granted. The Respondent sets out the conditions in Order 42 Rule 6(2) in support of this submission. 27. The Respondent emphasises that no Memorandum of Appeal has been filed, with the consequence that there are no grounds before the Court upon which the arguability of the appeal, if at all relevant, could be assessed. It is submitted that the Applicant has not demonstrated any substantial loss or prejudice that would result if the proceedings continue. The Court is invited, should it be inclined to grant a stay, to examine the application through the lens of Order 42 Rule 6 and the decision of this Court in Fast Generation Limited v Isogoli & another (Appeal E074 of 2025) [2026] KEELRC 150 (KLR), in which a stay was granted because the applicant had explained in detail the loss it stood to suffer. 18

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Misc. Application No. E141 Of 2025 28. The Respondent further invites the Court to take note of the fact that the Applicant, in its replying affidavit dated 16th January 2026, at paragraph 4 thereof, agreed that the taxed sum of Kshs. 1,575,950/= was awarded lawfully, judiciously and in line with the principles of taxation. In conclusion, it is submitted that the application is intended and fashioned to delay and deny the Respondent the fruits of its judgment, lacks merit, and should be dismissed with costs; and, in the alternative, that any stay be conditional upon the deposit of the entire sum of Kshs. 1,575,950/=. Analysis and Determination 29. I have carefully considered the application, the affidavits for and against it, the written submissions of both parties, and the authorities cited. The following issues, in my view, fall for determination: (i) The nature and limits of this Court’s power to stay proceedings pending appeal, and the approach it must take to an application of this nature; (ii) Whether the arguability of the intended appeal is a consideration under Order 42 Rule 6; 19

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Misc. Application No. E141 Of 2025 (iii) Whether the Applicant has demonstrated that it stands to suffer substantial loss unless the stay is granted; (iv) Whether there is, in law, a subsisting appeal upon which the application can stand; and (v) What orders ought to issue, including as to costs. (i) The nature and limits of the power to stay proceedings pending appeal 30. An application for stay of proceedings pending an appeal from a decision of this Court is provided for under Order 42 Rule 6 of the Civil Procedure Rules. The Applicant itself acknowledges that provision as the procedural foundation of its application. Sub-rule (1) provides: “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 sufficient 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, 20

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Misc. Application No. E141 Of 2025 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.” 31. Sub-rule (2) then provides: “(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.” 32. And sub-rule (4) provides: “(4) For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed 21

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Misc. Application No. E141 Of 2025 when under the rules of that Court notice of appeal has been given.” 33. Three things emerge from these provisions. First, the default position, stated in unequivocal terms, is that an appeal does not operate as a stay of proceedings. A litigant who lodges a notice of appeal does not thereby acquire a suspension of the proceedings below; the proceedings continue unless the court orders otherwise. Second, the court appealed from may depart from that default position only “for sufficient cause”. Third, the conditions set out in sub-rule (2), although framed by reference to execution, constitute the legislative yardstick of what amounts to sufficient cause, and they apply to an application for stay of proceedings to the extent that they are relevant to it. It follows that the Court’s power to grant a stay is not at large. It is fettered. It is exercised in favour of an applicant only where the conditions set out in the rule, as they are relevant to the application at hand, are demonstrated to the satisfaction of the Court. 34. With respect, the Applicant’s invitation to the Court to “look beyond” the conditions in Order 42 Rule 6(2) and to 22

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Misc. Application No. E141 Of 2025 exercise its discretion by reference to principles developed elsewhere cannot be accepted. A party cannot invoke a rule as the foundation of its application and, in the same breath, invite the Court to disregard the conditions that the rule attaches to the exercise of the power it confers. Judicial discretion is exercised within the four corners of the provision that donates it, not outside them. 35. There is a further and deeper reason why applications of this nature must be approached with caution, and why a stay of proceedings is not to be granted as a matter of course. Article 159(2)(b) of the Constitution commands that justice shall not be delayed. The overriding objective, as expressed in sections 1A and 1B of the Civil Procedure Act (which the Applicant itself invokes) and in section 3 of the Employment and Labour Relations Court Act, obliges the Court to facilitate the just, expeditious, proportionate and affordable resolution of disputes, the efficient use of available judicial and administrative resources, and the timely disposal of proceedings. An order staying proceedings runs directly against the current of these commands. 23

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Misc. Application No. E141 Of 2025 36. A stay of proceedings is, by its nature, a more drastic intervention than a stay of execution. A stay of execution suspends the enforcement of an adjudication that has already taken place; the successful party has had its day in court, and only the fruits of the decision are held in abeyance. A stay of proceedings, on the other hand, arrests the adjudicative process itself. It suspends the right of the other party, a right protected under Article 50(1) of the Constitution, to have its dispute resolved in a fair and public hearing before a court, and it does so before any determination on the merits has been made. That is a serious interference with the right of a litigant to prosecute its cause, and it must be justified by something more than a litigant’s disagreement with an interlocutory decision. 37. Secondly, if the mere lodging of a notice of appeal against an interlocutory ruling on jurisdiction were to be accepted as sufficient cause for staying the proceedings, every such ruling would, in practice, become the occasion for an indefinite suspension of the substantive dispute. That would invert Order 42 Rule 6(1), converting the exception into the rule. It would encourage piecemeal appeals, fragment litigation, and visit the costs and burdens of delay 24

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Misc. Application No. E141 Of 2025 upon the party whose case the Court has held to be properly before it. It must not be forgotten that a party aggrieved by an interlocutory ruling on jurisdiction is not left without a remedy if the proceedings continue; the question of jurisdiction can be ventilated on appeal, and, if the appeal succeeds, the consequences of the proceedings conducted in the interim can be addressed by the appellate court, including through an appropriate order on costs. 39. Lastly, I must address the Applicant’s reliance on Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (supra). The principle in that case, that jurisdiction is everything and that a question of jurisdiction must be raised and determined at the earliest opportunity, has been honoured in this matter. The Applicant raised its objection at the earliest opportunity, and the Court determined it. The decision in Lillian S does not command a court that has held that it has jurisdiction to down its tools merely because a party disagrees with that holding and has signalled an intention to appeal. 42. For these reasons, I hold that an application for stay of proceedings must be approached with circumspection. It is 25

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Misc. Application No. E141 Of 2025 not granted as a matter of course. It is granted only where the applicant brings itself squarely within the conditions of Order 42 Rule 6, as they are relevant to the application, and where, in the circumstances of the particular case, the interests of justice clearly outweigh the constitutional and statutory imperatives of expedition. (ii) Whether the arguability of the intended appeal is a consideration under Order 42 Rule 6 43. The Applicant has placed a great deal of emphasis on the contention that the intended appeal is arguable, and has submitted elaborately on it. With respect, that emphasis is misplaced. The arguability of an intended appeal is not a requirement for consideration under Order 42 Rule 6. The Rule speaks to sufficient cause, substantial loss, the absence of unreasonable delay, and security. It says nothing about arguability. 44. The twin principles of arguability and nugatoriness on which the Applicant relies derive from a different jurisdiction altogether, exercised by a different court. They are the principles developed by the Court of Appeal in the 26

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Misc. Application No. E141 Of 2025 exercise of its jurisdiction under Rule 5(2)(b) of the Court of Appeal Rules, 2010, which empowers that Court: “in any civil proceedings, where a notice of appeal has been lodged in accordance with rule 75, order a stay of execution, an injunction or a stay of any further proceedings on such terms as the Court may think just.” 45. That jurisdiction is original and discretionary, and it is unfettered in the sense that the Rule does not itself set out the conditions upon which it is to be exercised. It was precisely because of that that the Court of Appeal fashioned the twin principles. As Kantai JA observed in Cooperative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya) (supra), Rule 5(2)(b) grants the Court of Appeal unfettered discretion, the only qualification being that it be exercised judicially, and it is “now trite that two principles must be satisfied by an applicant who applies for stay of execution under the said rule”. Both Cooperative Bank and UAP Provincial Insurance Co Ltd v Michael John Beckett (supra), upon which the Applicant principally relies, were decided by the Court of Appeal in 27

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Misc. Application No. E141 Of 2025 the exercise of that jurisdiction. They do not define the conditions upon which this Court, as the court appealed from, may grant a stay under Order 42 Rule 6. The test of arguability cannot be imported into the High Court’s and Courts of equal status’ jurisdiction. Such an approach would find no footing in the text of the Rule. 46. The distinction is not merely technical. There is good reason why the rule-maker did not require the court appealed from to assess whether an appeal against its own decision is arguable. Such an exercise would place the court in the invidious position of sitting in judgment over its own decision, or, as here, over the decision of a Judge of co-ordinate jurisdiction, and of pronouncing, in effect, on the prospects of an appeal that is the exclusive preserve of the appellate court. The appropriate forum for the assessment of arguability is the Court of Appeal, under Rule 5(2)(b), should the Applicant choose to approach it. 47. That said, and without purporting in any way to determine the intended appeal, which is the preserve of the Court of Appeal, I may say by the way that I am not persuaded that the intended appeal has been informed by a thorough 28

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Misc. Application No. E141 Of 2025 consideration of the entire Advocates Remuneration Order. The Applicant’s thesis rests upon a reading of paragraph 11 in isolation, and upon a characterisation of the officer who assessed the costs as a subordinate court exercising its trial jurisdiction, as opposed to a taxing officer. Yet paragraph 2 of the Order provides that: “This Order shall apply to the remuneration of an advocate of the High Court by his client in contentious and non-contentious matters, the taxation thereof and the taxation of costs as between party and party in contentious matters in the High Court, in subordinate courts (other than Muslim courts), …” 48. Paragraph 10 of the Order provides that: “The taxing officer for the taxation of bills under this Order shall be the Registrar or a district or deputy registrar of the High Court or, in the absence of a registrar, such other qualified officer as the Chief Justice may in writing appoint; …” 49. The Order further makes provision, in paragraph 13, for the taxation of costs as between advocate and client on the 29

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Misc. Application No. E141 Of 2025 application of either party, and its Seventh Schedule is devoted to the costs of proceedings in subordinate courts. The Respondent’s claim is one founded on an advocateclient bill of costs, lodged in this very miscellaneous cause, and the Respondent describes the sum of Kshs. 1,575,950/= as a “taxed” sum. Whether the officer who assessed that sum was, in law, acting as a taxing officer is a question whose answer must be found in the Order read as a whole, together with the framework under which judicial officers serve as Deputy Registrars of this Court, and not in a single paragraph read in isolation. Indeed, the very authority upon which the Applicant relies for the literal rule, Jonnah Tusasirwe & 10 others v Council of Legal Education & 3 others (supra), cautions, borrowing from the Supreme Court of India, that “interpretation must depend on the text and the context”, and that neither can be ignored. I say no more on the point. (iii) Whether the Applicant has demonstrated substantial loss 50. Substantial loss is the cornerstone of an application under Order 42 Rule 6. In the context of a stay of proceedings, 30

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Misc. Application No. E141 Of 2025 the relevant inquiry is whether, if the proceedings are allowed to continue, the Applicant will suffer a loss of such a nature that the success of its appeal would not undo it. As this Court observed in Fast Generation Limited v Isogoli & another (supra), a decision on which the Respondent relies, it is not enough for an applicant merely to assert that it will suffer substantial loss; it must present, unambiguously, the loss that it is likely to suffer. 51. The loss the Applicant apprehends is this: that it will be compelled to participate in proceedings that may be declared a nullity, that it will incur costs and expend resources, and that it may potentially suffer adverse orders. With respect, I am not persuaded that the Applicant has sufficiently explained the substantial loss it is to suffer if the order for stay is not granted, in the circumstances of this matter, where what is before the Court is a reference challenging an assessment of costs arrived at before the Deputy Registrar. My reasons follow. 52. First, the proceedings sought to be stayed concern nothing more than the quantum of costs payable by a client to its advocate. At their highest, 31 they will result in a

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Misc. Application No. E141 Of 2025 determination on whether the assessment made at the level of the Deputy Registrar should stand, be varied, or be remitted for re-assessment. The product of those proceedings, whatever it may be, is a monetary figure. No execution is shown to be imminent. No property of the Applicant is shown to be at risk. Any liability that may result is, by its nature, quantifiable and reversible, and should the Court of Appeal ultimately hold that this Court erred, whatever was done in the interim can be undone. 53. Secondly, on the Applicant’s own case, it has no financial exposure worth protecting. It maintains that it had already paid the Respondent Kshs. 2,500,000/=, a sum exceeding the assessed figure of Kshs. 1,575,950/=, and it is said to have acknowledged in its replying affidavit of 16th January 2026 that the assessed sum was lawfully and judiciously arrived at. The Applicant has not explained what irreversible harm could possibly flow from the hearing of a reference in the face of those positions. 54. Thirdly, the costs and expense of participating in litigation do not, without more, amount to substantial loss. They are an incident of all litigation, and they are ordinarily 32

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Misc. Application No. E141 Of 2025 compensable by an award of costs. If the Applicant succeeds on appeal, it will be entitled to seek its costs of the proceedings conducted in the interim. The apprehension that proceedings may later be declared a nullity is a risk inherent in every interlocutory appeal on jurisdiction. If that risk, standing alone, amounted to substantial loss, a stay would follow as of course upon every such appeal, a result that Order 42 Rule 6(1) expressly forbids. 55. Fourthly, and tellingly, the Applicant’s own authority is against it. In UAP Provincial Insurance Co Ltd v Michael John Beckett (supra), the Court of Appeal, faced with an application for stay of proceedings pending an appeal against a refusal to stay a suit for arbitration, reasoned that if the hearing proceeded and judgment went against the applicant, it could appeal; that if it succeeded on such an appeal it would “have lost nothing except possibly costs”; and that if it failed, it would have lost because its case was untenable, and “would have lost nothing due to the lack of a stay since they were going to lose whether they had a stay or not.” Applying the logic approved in Silverstein v Chesoni [2002] 1 KLR 867, the Court held that the applicant 33

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Misc. Application No. E141 Of 2025 had failed to show that without the stay it would suffer irreparable loss, and dismissed the application with costs. That reasoning applies squarely to the present case. 56. For completeness, I note that the application was filed on 13th April 2026, some twenty-five days after the ruling of 19th March 2026. Contrary to the Applicant’s submission, it was not filed on the very day the Notice of Appeal was lodged. Nonetheless, I do not consider a delay of twentyfive days to be unreasonable. As for security, the Applicant has offered none, and the Respondent seeks a deposit of Kshs. 1,575,950/=. Given the conclusion I have reached on substantial loss, and on the issue that follows, it is unnecessary to determine the question of security. (iv) Whether there is a subsisting appeal upon which the application can stand 57. This, in my view, is the decisive issue. As observed above, Order 42 Rule 6(4) deems an appeal to the Court of Appeal to have been filed, for the purposes of the Rule, when a notice of appeal has been given under the rules of that Court. The jurisdiction to stay proceedings pending appeal therefore presupposes a notice of appeal that has been 34

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Misc. Application No. E141 Of 2025 validly lodged and that subsists. Where there is no subsisting appeal, there is nothing “pending” for a stay to protect. 58. The Respondent submitted, at the very outset of its submissions dated 21st May 2026, that the Applicant has only filed a Notice of Appeal, and has not demonstrated that it has filed a Memorandum of Appeal in the Court of Appeal. That submission has not been countered. The Applicant did not seek leave to file a further affidavit to demonstrate that its appeal had been instituted, or to explain why it had not. Its submissions are silent on the point. Nothing has been placed before the Court to show that a memorandum of appeal and record of appeal have been lodged, that the certified proceedings have not been supplied, or that the Registrar has certified any period as having been required for their preparation. These are matters peculiarly within the Applicant’s knowledge, and, by dint of section 112 of the Evidence Act, the burden of proving them lay upon it. 59. This brings me to the provisions of Rules 84 and 85 of the Court of Appeal Rules, 2022. Rule 84 provides: 35

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Misc. Application No. E141 Of 2025 “84. Institution of appeals (1) Subject to rule 118, an appeal shall be instituted by lodging in the appropriate registry, within sixty days after the date when the notice of appeal was lodged— (a) a memorandum of appeal, in four copies; (b) the record of appeal, in four copies; (c) the prescribed fee; and (d) security for the costs of the appeal: Provided that where an application for a copy of the proceedings in the superior court has been made in accordance with subrule (2) within thirty days after the date of the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted, be excluded such time as may be certified by the registrar of the superior court as having been required for the preparation and delivery to the appellant of such copy. 36

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Misc. Application No. E141 Of 2025 (2) An appellant shall not be entitled to rely on the proviso to subrule (1) unless the appellant’s application for such copy was in writing and a copy of the application was served upon the respondent. (3) The period specified in subrule (1) for the institution of appeals shall apply to appeals from superior courts in the exercise of their bankruptcy jurisdiction.” 60. Rule 85 provides: “85. Effect of default in instituting appeal (1) If a party who has lodged a notice of appeal fails to institute an appeal within the appointed time, that party shall be deemed to have withdrawn the notice of appeal and the Court may, on its own motion or on application by any other party, make such order. (2) The party in default under subrule (1) shall be liable to pay the costs arising therefrom of any persons on whom the notice of appeal was served.” 37

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Misc. Application No. E141 Of 2025 61. On the Applicant’s own account, the Notice of Appeal was lodged on 19th March 2026. The sixty days prescribed by Rule 84(1) for the institution of the appeal therefore lapsed on or about 18th May 2026, before the Respondent filed its submissions raising the point, and many months before the delivery of this ruling. The Applicant has not demonstrated that it instituted its appeal within that period, or at all. 62.The language of Rule 85(1) is clear and mandatory. A party who fails to institute an appeal within the appointed time “shall be deemed to have withdrawn the notice of appeal.” The deeming is by operation of law. It does not await a declaration by the Court of Appeal; the power reserved to that Court is to “make such order” consequent upon the deemed withdrawal. I am, accordingly, constrained to conclude that, on the material before me, the Applicant’s Notice of Appeal has, by operation of the law, been deemed withdrawn. 64. I must add a further observation, arising from the record, which fortifies that conclusion. The document annexed to the supporting affidavit as “GN-1”, and held out as the Notice of Appeal against the ruling of Justice Monica Mbaru 38

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Misc. Application No. E141 Of 2025 delivered on 19th March 2026, states on its face that Mega Apparel Industries Kenya Limited, being dissatisfied with “the ruling and decision of the Honourable Justice Gregory Mutai given at Mombasa on the 16th day of March, 2026”, intends to appeal against the whole of that decision. It names a party different from the Applicant in these proceedings, and a decision of a different Judge, delivered on a different date. Further, the portion of the document reserved for its endorsement as having been lodged with the Deputy Registrar is blank, and it bears no stamp of the Registry. Neither the supporting affidavit nor the submissions offer any explanation for these discrepancies. On its face, therefore, the document does not establish that a notice of appeal against the ruling of 19th March 2026 was ever lodged in accordance with Rule 77 of the Court of Appeal Rules. Even setting Rule 85 aside, the Applicant has not established the existence of the very appeal pending the determination of which it seeks a stay. 65. The upshot is that the application stands on no foundation. An order staying proceedings pending the hearing and determination of an appeal that, in law, is not pending 39

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Misc. Application No. E141 Of 2025 would be an order made in vain, and courts do not act in vain. (v) Disposition 66. In the result, I find that the Applicant has not brought itself within the conditions of Order 42 Rule 6 of the Civil Procedure Rules, and that, in any event, there is no subsisting appeal upon which the stay sought could be founded. Accordingly, I make the following orders: (a) The Client/Applicant’s Notice of Motion dated 13th April 2026 is hereby dismissed. (b) The Advocate/Respondent’s reference by way of Chamber Summons dated 8th December 2025 shall proceed to hearing, and the matter shall be mentioned on 27th October 2027 for directions. (d) The costs of the application shall be borne by the Client/Applicant. 67. It is so ordered. 40

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Misc. Application No. E141 Of 2025 READ, SIGNED AND DELIVERED VIRTUALLY IN MOMBASA ON THIS 30th DAY OF September 2026. OCHARO KEBIRA JUDGE 41

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