https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12627

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA ELDORET** **HCCMISC. APP NO. E033 OF 2025** **DINAH CHEBII METTO………………………………………………………...APPLICANT** **VERSUS** **ALOO ROMANUS & CO. ADVOCATES……….……………………………RESPONDENT** **RULING** **Introduction** 1. Before this Court is the Applicant's Notice of Motion dated 22nd April 2026, expressed to be brought under Rule 11(2) and (4) of the Advocates (Remuneration) Order, Sections 3 and 3A of the Civil Procedure Act and all other enabling provisions of the law. The Applicant principally seeks an order staying the execution of the Certificate of Taxation issued on 2nd April 2026 in the sum of Kshs. 456,075/= pending the hearing and determination of the intended Reference challenging the decision of the learned Taxing Officer. 2. The application is supported by the grounds appearing on its face and the supporting affidavit sworn by the Applicant. In essence, the Applicant contends that she has lodged a Notice of Objection against the taxation, intends to challenge the Taxing Officer's decision by way of a Reference under Rule 11 of the Advocates (Remuneration) Order, and that unless execution is stayed, the intended Reference will be rendered nugatory. 3. The Respondent opposes the application through a Replying Affidavit sworn on 11th May 2026 and written submissions dated 14th July 2026. The Respondent maintains that the Applicant has failed to demonstrate substantial loss, has not offered security for the due performance of the Certificate of Taxation, has not yet filed a competent Reference, and is merely seeking to delay the Respondent from enjoying the fruits of a lawfully issued Certificate of Taxation. 4. I have carefully considered the Motion, the affidavits on record, the rival submissions and the authorities cited by counsel. While the parties framed several issues, in my respectful view the application turns on one dispositive question. **Issue for Determination** 1. The sole issue for determination is: Whether this Court should exercise its discretion to stay the execution of the Certificate of Taxation dated 2nd April 2026 pending the hearing and determination of the Applicant's intended Reference. 1. The Applicant's intended challenge arises under Rule 11 of the Advocates (Remuneration) Order, which provides the statutory procedure through which a party aggrieved by a decision of a Taxing Officer may object to taxation and, where dissatisfied with the Taxing Officer's reasons, approach a Judge by way of a Reference. The Rule establishes the mechanism for challenging taxation but does not prescribe the principles governing applications for stay of execution pending such a Reference. 2. Equally significant is Section 51 of the Advocates Act, which accords legal efficacy to a Certificate of Taxation. Once issued, a Certificate of Taxation is final as to the amount certified unless it is set aside or altered by the Court. Consequently, the mere filing of a Notice of Objection or an intended Reference does not, without more, suspend the enforceability of the Certificate or deprive the successful advocate of the right to seek its enforcement. 3. In the absence of a specific test under the Advocates (Remuneration) Order, the Court exercises its discretion by applying, with the necessary modifications, the settled principles governing applications for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. Those principles have been consistently articulated in decisions such as **Halai & Another v Thornton & Turpin (1963) Ltd [1990] KLR 365** and **Butt v Rent Restriction Tribunal [1982] KLR 417**, where the courts emphasized that the jurisdiction to grant stay is discretionary and must be exercised judicially, balancing an applicant's right to pursue a challenge against the successful party's corresponding right to enjoy the fruits of a lawful decision. 4. It is equally well settled that an applicant seeking stay bears the burden of demonstrating sufficient cause for the exercise of that discretion. The applicant must, among other things, establish that substantial loss is likely to result if stay is refused, that the application has been made without unreasonable delay, and that appropriate security has been offered for the due performance of such decree or order as may ultimately be binding. These requirements are cumulative rather than alternative; failure to satisfy any one of them may be fatal to the application. 5. The Court must therefore strike a careful balance. On the one hand is the Applicant's undoubted right to challenge the taxation through the procedure provided under Rule 11 of the Advocates (Remuneration) Order. On the other is the Respondent's equally legitimate expectation that a Certificate of Taxation, validly issued after due process, should not be stayed save upon sufficient legal justification. It is against these principles that the present application falls to be determined. **Analysis And Determination** 1. The jurisdiction to grant a stay of execution is discretionary. Like all judicial discretions, it must be exercised upon settled principles and not upon sympathy or conjecture. The Court must balance two competing but equally legitimate interests: the Applicant's right to pursue the intended Reference against the Respondent's right to realise the fruits of a Certificate of Taxation lawfully issued in its favour. Neither interest automatically overrides the other; the Court's duty is to achieve a just equilibrium in the circumstances of the particular case. 2. The starting point is that the Applicant has lodged a Notice of Objection under Rule 11 of the Advocates (Remuneration) Order signalling her dissatisfaction with the taxation. The law undoubtedly accords a litigant the right to challenge a taxing officer's decision through a Reference. That right is an important procedural safeguard intended to ensure that taxation is conducted in accordance with the law and established principles. However, the existence of an intended Reference does not, of itself, operate as a stay of execution. Nor does it diminish the legal effect of a Certificate of Taxation, which remains valid and enforceable unless and until it is set aside or altered by the Court. 3. The Respondent has urged that the application is premature because no competent Reference has yet been filed and the Applicant has not demonstrated that the taxing officer's reasons have been obtained or are unavailable. While that contention is a relevant consideration in assessing whether the Applicant has acted with diligence, I do not consider it, standing alone, to be determinative of the present Motion. The question before this Court is not whether the intended Reference will ultimately succeed, but whether sufficient grounds have been laid to justify suspending the Respondent's right to enforce the Certificate of Taxation pending that challenge. 4. The cornerstone of an application for stay is proof of substantial loss. As was observed by the Court of Appeal in **Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] KLR 410**, substantial loss is the foundation upon which the jurisdiction to grant stay rests. It is not enough for an applicant merely to express apprehension that execution may proceed or that the intended challenge may be rendered nugatory. The Court must be presented with cogent evidence demonstrating the nature of the prejudice likely to be suffered and why such prejudice cannot adequately be remedied if the challenge ultimately succeeds. 5. In the present case, the Applicant has asserted that execution would render the intended Reference nugatory. Beyond that assertion, however, no material has been placed before the Court demonstrating the substantial loss likely to be occasioned by execution. There is no evidence of the Applicant's financial circumstances, no demonstration that payment of the taxed costs would occasion irreparable prejudice, and no material from which the Court can conclude that, should the Reference ultimately succeed, the Respondent would be unable to refund the sums recovered. The apprehended loss therefore remains speculative rather than evidentially established. 6. The Court is alive to the fact that the taxed amount is not insignificant. Nevertheless, the size of the decretal amount, without more, is not synonymous with substantial loss. The law requires proof of prejudice, not merely the existence of a monetary obligation. As was reiterated in **James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR**, the mere commencement of execution or the existence of a monetary decree does not, by itself, constitute substantial loss. I therefore find that the Applicant has failed to satisfy this fundamental requirement. 7. The second consideration concerns security for the due performance of such order as may ultimately be binding upon the Applicant. The requirement for security is not a procedural technicality. It is an essential component of the equitable balance which ensures that, while an unsuccessful party is afforded an opportunity to pursue a challenge, the successful party is not exposed to unnecessary prejudice should that challenge fail. It is for this reason that the Court of Appeal in **Halai & Another v Thornton & Turpin (1963) Ltd** underscored security as one of the mandatory considerations in applications for stay. 8. In the present application, the Applicant neither offered nor expressed willingness to furnish security. No proposal was placed before the Court regarding the form or quantum of security that would adequately safeguard the Respondent's interests pending the intended Reference. That omission is significant. It deprives the Court of the assurance that, should the intended Reference fail, the Respondent's entitlement under the Certificate of Taxation will remain adequately protected. In the circumstances, the Applicant has failed to satisfy another indispensable requirement for the grant of stay. 9. The Court must finally consider the broader balance of justice. The Respondent holds a Certificate of Taxation issued after taxation proceedings in which the Applicant participated. By virtue of Section 51 of the Advocates Act, that Certificate is final as to the amount certified unless and until it is set aside or altered by the Court. The Court must therefore be slow to interfere with the Respondent's statutory entitlement absent a clear demonstration that the interests of justice demand such intervention. While the Applicant has an unquestionable right to pursue the intended Reference, that right must be balanced against the equally legitimate expectation that the Respondent should not be kept out of its lawfully taxed costs without sufficient cause. 10. Having considered the totality of the material before me, I am not persuaded that the Applicant has discharged the burden necessary to warrant the exercise of this Court's discretion. The Applicant has failed to demonstrate substantial loss, has failed to offer security for the due performance of the Certificate of Taxation, and has consequently failed to satisfy the cumulative conditions governing the grant of stay. In those circumstances, there is no proper basis upon which this Court can suspend the Respondent's right to enforce a Certificate of Taxation that remains valid and enforceable in law. **Disposition** 1. The Court is mindful that the jurisdiction to grant a stay of execution is intended to preserve the efficacy of an intended challenge where justice so demands. Equally, however, it is not a jurisdiction to be exercised merely because an aggrieved party has expressed an intention to challenge a decision. An applicant must satisfy the Court that the circumstances justify temporarily suspending the successful party's right to enjoy the fruits of a lawful determination. 2. In the present case, while the Applicant has demonstrated an intention to pursue a Reference under Rule 11 of the Advocates (Remuneration) Order, that intention alone does not entitle her to an order of stay. Upon evaluating the material placed before the Court against the settled principles governing the grant of stay, I am not persuaded that the Applicant has discharged the burden placed upon her by law. In particular, the Applicant has failed to demonstrate substantial loss, has not offered security for the due performance of the Certificate of Taxation, and has therefore failed to satisfy the cumulative conditions upon which the Court's discretion is ordinarily exercised. 3. The Court is further mindful that the Respondent holds a Certificate of Taxation which, by virtue of Section 51 of the Advocates Act, remains valid and enforceable unless and until it is set aside or altered by the Court. To restrain its enforcement in the absence of sufficient cause would unjustifiably impede the Respondent's statutory entitlement and upset the careful balance that the law seeks to maintain between the right to challenge taxation and the right to enjoy the fruits of a lawful taxation. 4. Accordingly, I find that the Notice of Motion dated **22nd April 2026** is devoid of merit and does not warrant the exercise of this Court's discretion in favour of the Applicant. **Orders** 1. The Notice of Motion dated 22nd April 2026 is hereby dismissed. 2. The Respondent shall be at liberty to enforce the Certificate of Taxation dated 2nd April 2026 in accordance with the law. 3. The costs of the Notice of Motion are awarded to the Respondent. **Dated, Signed and Delivered Virtually at Eldoret this 31ST day of July 2026.** **……………………………………** **J. CHIGITI (SC)** **JUDGE**