https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4646

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MURANG’A** **ELCL PET E002 OF 2023** **IN THE MATTER OF: ARTICLE 22 (1) OF THE CONSTITUTION OF THE REPUBLIC OF KENYA -AND- IN THE MATTER OF: ARTICLES 1, 2, 3, 10, 19, 20, 21, 22, 23, 25, 27, 35, 40, 46, 47, 48, 50, 60, 64, 67, 93, 118, 124, 159, 162 (2) (b), 165, 248, 249, 254 AND 258 OF THE CONSTITUTION OF THE REPUBLIC OF KENYA -AND- IN THE MATTER OF: THE NATIONAL LAND COMMISSION ACT NUMBER 5 OF 2012 OF THE LAWS OF KENYA -AND- IN THE MATTER OF: THE NATIONAL ASSEMBLY STANDING ORDERS, 6TH EDITION IN THE MATTER OF: CONTRAVENTION AND THREATENED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 1, 2, 10, 19, 20, 21, 22, 23, 24, 25, 27, 28, 35, 40, 47, 48, 50, 60 AND 67 OF THE CONSTITUTION OF THE REPUBLIC OF KENYA -BETWEEN- DEL MONTE KENYA LIMITED .......................................................... PETITIONER/APPLICANT -AND- SPEAKER OF THE NATIONAL ASSEMBLY ................................................... 1ST RESPONDENT NATIONAL LAND COMMISSION ...................................................................... 2ND RESPONDENT** **MINISTRY OF LANDS, PUBLIC WORKS, HOUSING AND** **URBAN DEVELOPMENT ..................................................................................... 3RD RESPONDENT THE ATTORNEY GENERAL .............................................................................. 4TH RESPONDENT -AND- KANDARA RESIDENCE ASSOCIATION OTHERWISE KNOWN AS KANDARA RESIDENTS’ ASSOCIATION ............................................................... 1ST INTERESTED PARTY/RESPONDENT CYRUS NJOROGE MUTHONI & 130 OTHERS...... 2ND INTERESTED PARTY/RESPONDENT** **RULING** 1. This ruling is on the notice of motion dated 16-3-2026. The motion which is by the Petitioner is brought under 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** and all other enabling provisions of the law. The motion seeks the following residual orders. 2. **Stay of Taxation proceedings in this matter pending the hearing and determination of the Applicants’ notice of motion dated 30-10-2025 filed in Nyeri Court of Appeal case No. COACA E217 of 2025.** 3. **That the Applicant be at liberty to apply for such further orders and/or directions as the court may deem fit and just to grant.** 4. **That the Court makes such further orders as necessary to not only meet the ends of justice but to safeguard the subject matter of the application and also of the appeal.** 5. **That the costs of this application be provided for.** 6. The motion is based on nine (9) grounds and it is supported by an affidavit sworn by the Petitioner’s managing director dated 16-3-2026. The essence of the grounds and the affidavit is to the following effect. One, on 30-9-2025, this Court delivered its judgment dismissing the Petitioner’s petition dated 27-3-2024 and awarded costs to the interested party. Two, aggrieved by the said judgment, the Petitioner filed an appeal to the Court of Appeal which is No. COACA E217 of 2025 at the Court of Appeal at Nyeri. The Appeal challenges the costs awarded to the interested party, and also seeks stay of execution of the judgment and decree of this Court. Three, the interested party has filed a bill of costs dated 9-10-2025 seeking a sum of Kshs. 975,113,854.34 The bill is scheduled for taxation before the Deputy Registrar. Four, unless this Court intervenes and allows this motion, the Petitioner shall be exposed to taxation and condemned to pay a highly colossal sum and this may render the appeal nugatory and occasion the Petitioner grave prejudice, irreparable loss and financial loss. Finally, this motion has been filed without unreasonable delay. 7. The motion is opposed by the interested party whose vice chair has sworn a replying affidavit dated 7-4-2026 in which he replies as follows. Firstly, the Petitioners motion is premature, speculative and founded on apprehended prejudice that has not crystallized in law became when it was filed, no taxation had taken place, no taxed costs had been certified and no certificate of taxation had been issued. There is therefore no taxed or certified sum capable of founding execution against the Petitioner. Secondly, taxation of a bill of costs does not by itself amount to execution. It is only an ascertainment of the quantum of costs payable. It cannot therefore occasion any loss to the person against whom it is taxed. Thirdly, under Section 94 of the Civil Procedure Act, a ascertainment of costs is just one step while the second step is enforcement of the taxed amount through execution. Fourthly, the Petitioner should first undergo taxation and it is only after taxation that it may properly invoke the jurisdiction of this Court under paragraph 11 of the Advocates Remuneration order. It cannot, as at now preempt the present application. Fifthly, taxation proceedings are independent of the main appeal and the bill of costs in not a subject of the appeal. Sixthly, the Petitioner will be heard at the taxation of the bill of costs and the highly colossal sum claimed may be reduced. Finally, the Petitioner has not satisfied the conditions precedent to the grant of the stay sought under Order 42 rule 6 of the Civil Procedure Rules. In addition to the replying affidavit, the 1st interested party field fifteen (15) grounds of opposition which are more or less the same with the contents of the replying affidavit. 1. I have carefully considered the notice of motion dated 16-3-2026 in its entirety including the grounds in support, the supporting affidavit, the replying affidavit, the grounds of opposition, the written submissions by learned counsel for the parties, the issues raised therein as well as the case law cited. I find that the following issues arise. * 1. **Whether this Court has the power to stay a taxation of a bill of costs pending before the Deputy Registrar.** 2. **Whether the current motion meets the threshold for stay of execution under Order 42 rule 6 of the Civil Procedure Rules.** 3. **Whether the Petitioner has exhausted the procedure provided for under paragraph 11 of the Advocates Remuneration order.** 4. **Whether this Court should deal with an application for stay for stay of execution when a similar application is pending before the Court of Appeal.** 2. Regarding the first issue, I find that though this Court has inherent jurisdiction to do justice under Sections 1A, 1B and 3A of the Civil Procedure Act, I have not seen any other specific provision of law allowing this court to stay taxation of a bill of costs. In the absence of such provision, the inherent jurisdiction of this Court under Sections 1A, 1B and 3A should be exercised and only where sufficient cause has been shown. The Petitioner has not said that it will be denied a fair hearing by the Honourable the Deputy Registrar. Neither has it said that due process will not be followed before the Deputy Registrar. If there were such allegations credibly backed by evidence, then the Court invoke its inherent jurisdiction. In the absence of sufficient cause, this court will not stay of execution of the bill of costs because the Petitioner will be heard at the taxation. 3. As for the second issue, I find that the motion is for stay of execution because it is made post judgment and taxation is part of the execution process. Taxation kick starts execution. This being the case, the motion by the Petitioner must meet the threshold in Order 42 rule 6(2) of the Civil Procedure Rules. It states- **(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 or such decree or order as may ultimately be binding upon him has been given by the Applicant. “** For the motion to be allowed, the Applicant must prove all the three conditions of substantial loss, timeous filing of the motion and provision of security for the due performance of the decree or order that may finally issue. In this case, the Petitioner has not proved that it stands to suffer substantial loss if taxation takes place. It will be heard at the taxation. Taxation is a kindred process of suits where costs are awarded. It is nothing unusual but a forma and legal way of concluding a suit. It should be allowed to flow naturally. No substantial loss has been proved. On the second limb of the conditions, I find that the motion has been filed timeously because the notice of taxation was served on 10-3-2026 and the notice of motion brought before court on 17-3-2026. Finally on this issue, I find that the Petitioner has not offered to deposit any security for the due performance of any decree or order that be found to be due finally. This is one of the considerations that may persuade the Court to allow a stay of execution. The Petitioner has satisfied only one out of the three condition yet for it to qualify for stay of execution all the three conditions must be met. The Court therefore finds that the threshold for stay of execution is not met. 1. It is my finding that the only jurisdiction that this Court has in relation to taxation is under paragraph 11 of the Advocates Remuneration Order. That is the only place that the law contemplates that this Court will intervene in the taxation process. Since taxation has not taken place, the jurisdiction of this Court to deal with the matter before the deputy registered has not ripened. It is trite law that where the law provides for the redress of any particular grievances the procedure provided in the law must be exhausted before the aggrieved party can seek alternative remedy. In the case of **The Speaker of the National Assembly vs. James Njenga Karume, [1992]eKLR, the Court of Appeal** held as follows, inter alia. **“ where there is a clear procedure for the redress of any particular grievance prescribed by the constitution of an Act of Parliament, that procedure should be strictly followed.”** Let the Petitioner follow the procedure under the Advocate Act but after taxation, if need be. 1. Finally, it is my finding that because the appeal before the Court of Appeal is also seeking stay of execution of the decree of this Court, this court cannot properly deal with an application for stay of execution. Once the Court of Appeal starts exercising its jurisdiction in an appeal arising from this Court’s decree, this court becomes *functus officio*. For the above stated reasons, I find no merit in the motion dated 16-3-2026 and **I dismiss** it with costs. **Dated, Signed and Delivered virtually at Murang’a this 22nd day of July, 2026.** **M.N. GICHERU JUDGE.** **Delivered online in the presence of; -** **Court Assistant – Jackline** **Petitioners Counsel – Mr. Odour** **1st Respondent’s Counsel – Miss Amolo** **1st Interested party’s Counsel – Miss Wangari**