Republic v Competition Authority of Kenya

3. In the intervening period, the 2nd Interested Party has commenced taxation proceedings pursuant to the costs awarded in the struck-out matter, thereby necessitating the present Application. 4. This has precipitated the filing of Notice of Motion dated 12th November 2024 wherein the Applicant’s, Airtel Networks Kenya Limited, are seeking an order of stay of proceedings that are pending taxation of Bills of Costs, pending the hearing and determination of the appeal. 5. It is the Applicant’s case that if the appeal succeeds, then the Ruling of this Court will be set aside wholly, including the award of costs, and the Applicant’s Notice of Motion dated 11thDecember 2023 will fall to be heard on the merits. 6. The Applicant argues that this Court has jurisdiction to order a stay of proceedings pending appeal, relying on Order 42 Rule 6 and the Court’s inherent powers under Section 3A of the Civil Procedure Act. 7. Reliance is placed in Ezekiel Mule Musembi v H. Young & Company (EA) Ltd, Civil Appeal No. 24 of 2018, where Odunga J held that: “ It is not in doubt that this Court has powers to stay proceedings pending appeal and this jurisdiction is derived from both Order 42 rule 6 of the Civil Procedure Rules as well the inherent jurisdiction reserved in section 3A of the Civil Procedure Act.” 8. The Applicant distinguishes a stay of proceedings from a stay of execution, submitting that the requirements under Order 42 Rule 6(2) including the provision of security are not applicable where a party seeks to halt proceedings rather than execution. 9. Counsel relies on Kenya Power & Lighting Co. Ltd v Esther Wanjiru Wokabi, Civil Appeal 326 of 2013,where the Court held: “ ...the said provisions only apply to Applications for stay of execution of a decree or order issued by a court pending hearing of an appeal but the same do not apply to Applications for stay of proceedings such as the Application now before me.” 10. The Applicant further invokes the principles articulated in Global Tours & Travels Limited, Nairobi HC Winding Up Cause No. 43 of 2000 (as cited in Civil Appeal 326 of 2013), in which Ringera J stated: “ ...whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice… the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted… and [the Court] should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal… the scarcity and optimum utilization of judicial time and whether the Application has been brought expeditiously.” 11. The Applicant submits that the appeal raises weighty jurisdictional issues of public importance, including whether the Competition Tribunal may properly entertain constitutional questions. 12. It argues that these matters ought to be determined by the Court of Appeal before any further steps are taken in the suit, as jurisdiction is foundational to all judicial proceedings. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18312/eng@2025-11-26 2

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13. On the question of judicial economy, the Applicant cites Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others, Civil Appeal 25 of 2002, where the Court of Appeal emphasized that: “ Judicial time is the only resource the courts have at their disposal and its management does positively or adversely affect the entire system of the administration of justice.” 14. The Applicant also relies on authorities where courts have stayed taxation pending appeal to avoid the risk of redundant or repetitive proceedings. It refers to Ewaso Ngiro North Development Authority v APA Insurance Limited, Civil Appeal 58 of 2018, in which Muriithi J held that: “ ...if the appellate court will have made a determination that affects the costs of the suit already taxed, judicial time would have been wasted… it makes judicial sense to avoid a situation where a taxation will eventually have to be repeated or become redundant depending on the outcome of the appeal.” 15. The Applicant places further reliance in Patrick Wafula Kuloba v Director/Chief Executive Officer, Kenya Industrial Research & Development Institute, ELRC E377 of 2020, and Invesco Insurance Company Limited v Charles Muturi Mwangi, HCCC No. 358 of 2012, where it was observed that allowing proceedings to continue notwithstanding a pending appeal may expose parties to “irreversible” prejudice through the incurring of unnecessary and unrecoverable costs. 1st Interested Party’s Case; 16. The 1st Interested Party, Pesapal Limited, opposes the Applicant’s Motion of 8th November 2024 through Grounds of Objection dated 5th December 2024 and written submissions filed pursuant thereto. The gravamen of its objection is that the stay sought aimed at halting taxation proceedings pending an appeal lacks legal basis, is speculative, and would unjustifiably impede its constitutional right to expeditious disposal of disputes. 17. It is the 1st Interested Party’s position that taxation is a distinct, procedural mechanism designed merely to ascertain the quantum of costs. At this stage, the taxing officer’s task is confined to determining what amount is payable, and any apprehension by the Applicant that the taxing master’s decision may prejudice the pending appeal is premature and unfounded. The 1st Interested Party relies heavily on Kenya Electricity Generating Company Limited (Kengen) v OJSC Power Machines Limited & Others [2017] KEHC 9885 (KLR), in which the Court endorsed the Court of Appeal’s pronouncements in Peter Kamau Ikigu v Barclays Bank of Kenya Limited & Another, Civil Application No. NAI 306 of 2013, that: “ When it comes to matters of taxation of Bills of Costs, the taxing master is the real authority and, except in exceptional cases, courts will defer to his or her views, opinions and decisions….” 18. The Court in that matter went on to emphasise the speculative nature of resisting taxation, observing: “ Nobody knows what items the taxing master will strike off the Respondents’ Bill of Costs and what the final figure awarded will be… the law provides a very elaborate process for challenging the decision or the exercise of discretion by the taxing master, which in this case is yet to be invoked.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18312/eng@2025-11-26 3

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19. Relying on these holdings, the 1st Interested Party submits that the Applicant retains a complete appellate pathway under Paragraph 11 of the Advocates Remuneration Order should it be dissatisfied with any ruling of the taxing master. Consequently, taxation “cannot render nugatory the pending Appeal,” as the law provides a self-contained mechanism for correction of errors emanating from the taxation process. 20. The 1st Interested Party further contends that the stay sought threatens to occasion disproportionate prejudice to the non-Applicants. With no clarity as to when the Court of Appeal will give directions or hear the appeal, the effect of a stay would be to indefinitely suspend the Interested Parties’ statutory right to progress their taxation. In this regard, the 1st Interested Party invokes the principle articulated in Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR), where the Court held that: “ Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore the test for stay of proceeding is high and stringent.” 21. The 1st Interested Party draws the Court’s attention also to the passage cited with approval from Global Tours & Travels Limited, Nairobi HC Winding Up Cause No. 43 of 2000, that the Court must weigh “the pros and cons of granting or not granting the order” and account for “the need for expeditious disposal of cases” and “the scarcity and optimum utilization of judicial time.” 22. In addition, the 1st Interested Party cites Halsbury’s Laws of England, 4th Edition, Vol. 37, noting the high threshold applicable to stay of proceedings, where it is stated that: “ The stay of proceedings is a serious, grave and fundamental interruption… the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.” and that such power “ought to be exercised sparingly, and only in exceptional cases.” 23. The 1st Interested Party argues that the balance of convenience tilts decidedly against granting the stay. It contends that the Applicant is fully protected by the procedural safeguards under the Advocates Remuneration Order, while the Interested Parties would suffer significant prejudice through delayed access to justice if taxation were halted. It urges the Court to find, as the Court did in Kengen v OJSC Power Machines Limited, that there is “no legal basis for staying the taxation of the Bill of Costs,” and to dismiss the Applicant's Motion accordingly. Analysis and Determination; 24. In the locus classicus case of Owners of Motor Vessel ‘Lilian S’ v Caltex Oil (Kenya) Ltd (1989) 1 KLR, Nyarangi JA outlined the relevant principle on disposal of jurisdictional questions as follows: “ Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs its tools in respect of the matter before it at the moment it holds the opinion that it is without Jurisdiction.” 25. A Court must first and foremost address an issue of jurisdiction first whenever it is raised in a suit or an Application because jurisdiction is a fundamental, threshold question that goes to the very power and authority of the Court to hear and determine a case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18312/eng@2025-11-26 4

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26. In the impugned Ruling this court struck out the Applicant’s judicial review proceedings after the Court “downed its tools” on grounds of want of jurisdiction. 27. The import of this is that this court cannot issue any orders given that it lacks the power to do so. To purport to issue the orders as sought by the Applicant would be tantamount to setting aside its own finding that it lacked jurisdiction. 28. The court will say no more. Determination: 29. This court lacks jurisdiction to preside over the Application. Order; The Application is struck out with costs. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 26TH DAY OF NOVEMBER, 2025. ………………………….………………….. J. M. CHIGITI (SC) JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18312/eng@2025-11-26 5

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