https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7798

Sum (Suing as the Legal Guardian Ad Litem of Veronica Chepsat Sum) v Nabasenge t/a Kutto & Kaira Nabasenge (Miscellaneous Civil Application E163 of 2025) [2026] KEHC 7798 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KEHC 7798 (KLR) Republic of Kenya In the High Court at Eldoret Miscellaneous Civil Application E163 of 2025 E Ominde, J June 3, 2026 Between Edel Chepkorir Sum (Suing as the Legal Guardian Ad Litem of Veronica Chepsat Sum) Applicant and Kaira Nabasenge t/a Kutto & Kaira Nabasenge Respondent Ruling 1.By a Notice of Motion dated 6th November 2024 brought under Sections 1A and 3A of the Civil Procedure Act and Orders 11 Rules (3) and 50 (1) of the Civil Procedure Rules, the Applicant seeks orders that:1.Spent.2.Spent.3.There be an immediate stay of all proceedings and intended execution and any other consequential orders in the following matters pending the hearing and final determination of this Application:i.Eldoret High Court Misc. Civil Application No. E173 of 2022ii.Eldoret High Court Misc. Civil Application No. E167 of 2022iii.Eldoret Environment and Land Court Misc. ELC Application No. E039 of 2024iv.Eldoret High Court Misc. Criminal Application No. E025 of 2022v.Eldoret Environment and Land Court Misc. ELC Application No. E050 of 2022vi.Eldoret Environment and Land Court Misc. ELC Application No. E051 of 2022vii.Eldoret Environment and Land Court Misc. ELC Application No. E049 of 2022viii.Eldoret Environment and Land Court Misc. ELC Application No. E015 of 2023ix.Eldoret Environment and Land Court Misc. ELC Application No. E016 of 2023x.Eldoret High Court Misc. Civil Application No. E168 of 2022xi.Eldoret High Court Misc. Civil Application No. E036 of 2022xii.Eldoret High Court Misc. Civil Application No. E003 of 20234.The Honourable Court be pleased to consolidate the following matters listed below and thereafter proceed to hear and finally determine the same:i.Eldoret High Court Misc. Civil Application No. E173 of 2022ii.Eldoret High Court Misc. Civil Application No. E167 of 2022iii.Eldoret Environment and Land Court Misc. ELC Application No. E039 of 2024iv.Eldoret High Court Misc. Criminal Application No. E025 of 2022v.Eldoret Environment and Land Court Misc. ELC Application No. E050 of 2022vi.Eldoret Environment and Land Court Misc. ELC Application No. E051 of 2022vii.Eldoret Environment and Land Court Misc. ELC Application No. E049 of 2022viii.Eldoret Environment and Land Court Misc. ELC Application No. E015 of 2023ix.Eldoret Environment and Land Court Misc. ELC Application No. E016 of 2023x.Eldoret High Court Misc. Civil Application No. E168 of 2022xi.Eldoret High Court Misc. Civil Application No. E036 of 2022xii.Eldoret High Court Misc. Civil Application No. E003 of 20235.The Honourable Court be pleased to issue any further orders and/or direction that it may deem just.6.Costs be in the Cause. 2.The application is anchored on the grounds on the face of it and it is further supported by the Applicant’s Affidavit sworn on 16th June 2025. The Applicant deposed that her mother, her sister and herself instructed the Respondent herein to act for them in various legal matters. That it was expressly agreed that in handling the various legal matter, whether they be cases where the instructing client appears individually or where they appear collectively, all sums of money advanced by them to the Respondent’s office was to carter for their collective legal fees. 3.The Applicant maintained that it was the Respondent’s professional duty to ensure that the books of accounts were kept properly so as to understand how the money they would pay in legal fees was being utilized. The Applicant further deposed that subsequently, the Respondent herein did indeed enter appearance and make several applications on their behalf. That however, the Respondent failed to uphold his professional duties by failing to keep proper books of accounts for the Applicant and also failed to account to them on a regular basis specifically on what services had been rendered, whether they had any legal fees unpaid and/or outstanding, which services were not paid and/or remained outstanding and what the exact amount that was owed by them was. 4.Further, that whenever they advanced substantial sums of money to the Respondent, he did not inform them which specific legal service the money had been channeled to. That subsequently, they became dissatisfied and discontent with the quality of the service that was being rendered by the Respondent who then terminated his service voluntarily by which time they had already paid substantial amounts of money to the tune of over Kshs. 3,000,000/=. That this amount is exclusive of the sum of over Kshs. 990,676/= which has also been paid pursuant to the findings of various taxing officers. 5.The Applicant deposed that after the Respondent voluntarily terminated his services, he became resentful and has since instituted multiple taxation proceedings by filing numerous Advocate/Client Bills of Costs wherein he seeks astronomical and unreasonable sums of money. That some of these bills have been determined while others are pending. The Applicant urged that given these circumstances, the said bills are vexatious, frivolous, exploitative, unjust, unreasonable and a blatant abuse of Court process given that they mostly relate to the same subject matter hence repetitive. 6.The Applicant deposed in this regard that there is therefore a dire and urgent need to have these matters consolidated for reasons that there is the real and imminent danger that the Respondent will proceed to repeatedly tax them either individually or collectively for the same set of instructions and that if these matter are allowed to proceed to taxation and execution, then the Respondent will not be held accountable for his failure to keep proper books of accounts, rather he will profit from his own errors. 7.She deposed further that these several matters will take an impossibly long time to finalize, the Respondent may end up being unjustly enriched, the Applicants will end up financially disenfranchised especially considering the substantial sums of money already advanced, and the court on its part will end up condoning the multiplicity of suits thereby wasting valuable judicial resources and abetting the miscarriage of justice. 8.That the parties in the suits are substantially the same and there is a risk of conflicting judgments if the suits are heard separately, which would prejudice the parties and undermine the integrity of the judicial process. The Applicant deposed that consolidation of the suits will save judicial time, reduce costs for the parties and expedite the resolution of the dispute. The Applicant urged that it is in the interest of justice and fairness that the suits be consolidated to avoid unnecessary delays and duplication of proceedings. Response 9.The Application is opposed by the Respondent vide Grounds of Opposition dated 24th June 2025 and also by way of a Replying Affidavit sworn by Counsel Kaira Nabasenge on 26th June 2025. 10.The Respondent deposed in his Replying Affidavit that the orders being sought by the Applicant are frivolous and vexatious and as such cannot be granted. Counsel contended that the instant Application has no basis in law and stated that the Applicant is seeking to stay and/or consolidate applications that are as a result of the Advocates Client Bill of Cots and that these Miscellaneous Applications have either been determined or are pending before the Environment and Land Court and this Court by way of references and or execution(sic). 11.He further deposed that by dint of prayer 2 and 3 of the instant application the miscellaneous applications sought to be stayed and/or consolidated include but are not limited to various Bills of Costs whose status he gave as follows; Eldoret High Court Misc. Civil Application No. E173 of 2022, Eldoret High Court Misc. Civil Application No. E167 of 2022 and Eldoret High Court Misc. Civil Application No. E003 of 2023 was heard by the Deputy Registrar and determined and consequently a Certificate of Costs issued and the Applicants never preferred an appeal and/or a reference but have since settled the taxed amount; 12.Eldoret Environment and Land Court Misc. ELC Application No. E039 of 2024 is still pending before the Environment and Land Court and is due for further directions on 5th November 2025. In Eldoret High Court Misc. Criminal Application No. E025 of 2022 he deposed that the Applicant, Edel Sum instructed him to review bond terms which he did successfully; Eldoret Environment and Land Court Misc. ELC Application No. E050 of 2022 and Eldoret High Court Misc. Civil Application No. E036 of 2022 was heard by the Deputy Registrar and determined and consequently a Certificate of Costs issued and the Applicants never preferred an appeal and/or file reference and are yet to settle the taxed amount; 13.In Eldoret Environment and Land Court Misc. ELC Application No. E051 of 2022, the Respondent Counsel deposed that he is not aware of this matter and no documentation has been annexed to the instant application to demonstrate that he is a party. Eldoret Environment and Land Court Misc. ELC Application No. E049 of 2022 was heard by the Deputy Registrar and determined and consequently a Certificate of Costs issued and the Applicants never preferred an appeal and/or file reference and are yet to settle the taxed amount; 14.Eldoret Environment and Land Court Misc. ELC Application No. E015 of 2023 and Eldoret Environment and Land Court Misc. ELC Application No. E016 of 2023was filed by way of a Reference in the Environment and Land Court and the same was heard and determined by the ELC and a Ruling delivered directing for the re-taxation of the Advocate’s Client Bill of Costs in question. Eldoret High Court Misc. Civil Application No. E168 of 2022 was heard by the Deputy Registrar and determined and consequently a Certificate of Costs issued, that the Applicants never preferred an appeal and/or file reference and have since partially settled the taxed amount 15.The Respondent contended that given the status of the said miscellaneous applications that are being sought to be stayed and/or consolidated, the same are either res judicata or sub-judice. The Respondent added that some of the said miscellaneous applications are pending and/or were determined by the Environment and Land Court hence this court lacks jurisdiction to deliberate on the same 16.The Respondent further deposed that the said miscellaneous applications are premised on the Advocate Client Bill of Costs that is stipulated under the Advocates Act and that there is a procedure established under the Act to challenge such decisions. That therein, a party aggrieved with the decision of the taxing master is required to lodge a Reference in the Superior Court within 28 days. The Respondent urged that it is not clear from their pleadings what kind of application has been preferred by the Applicants. 17.The Respondent reiterated that the Applicants having never challenged the decision of the taxing master in the said various miscellaneous applications as stipulated by the law is now estopped from seeking stay of the same and or consolidation of the same without any basis and or justifiable reasons. 18.The Respondent further deposed that the Applicants had the opportunity to defend the said Advocates Client Bill of Costs which they did and they cannot now again ask the Court to review the matter by either staying the said miscellaneous applications and/or consolidating them. The Respondent maintained that as an Advocate he was instructed to handle distinctive and various matter by the Applicant for which he is entitled to legal fees as stipulated by the law. 19.Most of the depositions in the Replying Affidavit are also what comprises the Grounds of Objection filed save to add that therein the Respondent states that in light of the explanations given on the status of each matter as herein summarized, the instant application is either Res Judicata and/or Sub Judice by dint of the fact that they have either been concluded and are pending execution and/or pending appeals(References) before different competent courts or are before the Deputy Registrars awaiting taxation and some have even been settled either fully or partially and so this court lacks the jurisdiction to stay taxation processes and references pending before different courts. 20.The Respondent further states that the instant application is an omnibus application for reasons that it is neither a Reference nor an Appeal. That in this regard, it is ambiguous and has no basis in law. That it is fatally defective has no basis and is an abuse of the court process. That further the application does not challenge any taxation whatsoever but is a mere general lamentation against the legal services rendered by an Advocate and the court lacks jurisdiction to deliberate on the same for reasons that it is the Deputy Registrar that is the 1st port of call in handling such disputes and the High Court being a Superior Court can only handle any challenge to the Deputy Registrar’s decision by way of a Reference. Submissions 21.The Applications was canvassed vide written submissions and both parties filed their respective submissions.as directed by the court. Applicant’s Submissions 22.Counsel for the Appellant opened his submissions by restating the entirety of the parties’ respective cases as already herein summarized. On the issue of consolidation of suits, Counsel relied on the case of Arnold Kipkirui Langat v Atticon Limited & 7 others [2021] eKLR, Nyati Security Guards & Services Ltd vs Municipal Council of Mombasa [2000] eKLR and the case of Shah & another v Fidelity Commercial Bank Ltd & 2 others; Fantasy Auctioneer (Auctioneer) (Civil Case 212 of 2011) [2023] KEHC 20393 (KLR), wherein the essence of consolidation was discussed. Counsel submitted that in line with the herein cited decisions, the principle regarding consolidation of suits revolves around saving precious judicial resources, preventing relitigating the same cause of action between the same parties, preventing a losing party from forum shopping for a more favourable and/or sympathetic judicial forum. 23.Regarding the jurisdiction of the High Court to consolidate matters, Counsel relied on the case of Arnold Kipkirui Langat v Atticon Limited & 7 others [2021] eKLR, (Supra) and the case of Shah & another v Fidelity Commercial Bank Ltd & 2 others; Fantasy Auctioneer (Auctioneer) (Civil Case 212 of 2011) [2023] KEHC 20393 (KLR (Supra). 24.Counsel further submitted that the Applicant is cognizant of the provisions of Section 6 of the Civil Procedure Act 2010 on the doctrine of Res Judicata and maintained that the only cases that are being sought to be consolidation are those that are yet to be decided as listed in prayer (c) thereof. 25.Regarding the Respondent duty to keep proper accounts, Counsel contended that the same amounts to "Unsatisfactory professional Conduct" and the cited Rule 4, 13, 14 and 15 of the Advocates (Accounts) Rules (2022) as well as the Law Society of Kenya Act (No. 21 Of 2014)- Code of Standards of Professional Practice and Ethical Conduct. 26.On the Respondent should be paid repeatedly over the same instructions, Counsel argued that it is trite law that an advocate shouldn't be paid twice over the same instructions and relied on the case of Grace Wangui Ngenye v Wilfred Kiboro & another [2013] eKLR. Respondent’s Submissions 27.Counsel for the Respondent equally begun by restating the party’s pleadings and more particularly the depositions made in the Replying Affidavit as already herein summarized. On the court’s jurisdiction, Counsel submitted that the same is lacking for reasons firstly that the said miscellaneous applications that are sought to be stayed and/or consolidated are either Res Judicata and or Sub Judice and that secondly some of the applications were lodged before the Environment and Land Court. 28.Counsel submitted that apart from the fact that it is known whether the application is a Reference or a Review, the Application does also not give reasons as to why the said applications which are independent of each other should be stayed and/or consolidated and argued that there is no substantive prayer sought by the Applicants subsequent to the orders of stay and consolidation that they seek and therefore questioning what happens next after the orders are granted, if at all they are granted. Counsel reiterated the procedure provided under Rule 11 of the Advocates Remuneration Order on the requirement that any challenge to the decision of the Taxing Master be made within 28 days. 29.Counsel submitted in this regard that some of the Certificates of Costs herein were issued way back in the year 2023 whereby some have been settled and some are pending execution and no Reference was ever filed by the Applicants to challenge the same. For this reason, Counsel reiterated that the instant application has no basis in law and even assuming that it is a reference purporting to challenge the decisions of the taxing officers in the said respective miscellaneous applications, it has been lodged after an inordinate delay and also without the leave of the court and therefore offends the provisions of the said Rule 11 of the Advocates Remuneration Order. Counsel therefore urged that the Application be struck out with costs. 30.Counsel further submitted that some of the miscellaneous applications sought to be stayed were lodged in the Environment and Land Court and have been either settled and/or pending execution as outlined in our Replying Affidavit dated 26th June 2025 and herein summarized. He therefore urged that Article 165(5) and Article 162(2) of the Constitution the High Court lacks jurisdiction to deliberate on these matters. Determination 31.I have carefully considered the application the Affidavits filed in support of and against the same as well as written submissions filed by Counsel on behalf of the parties and it is my considered opinion that the following are the issues that arise for determination:a.Whether the order stay of proceedings is meritedb.Whether the order of consolidation sought should issue 32.The instant application as drawn is seeking orders for “the immediate stay of all proceedings, and intended execution and any consequential orders in the following matter pending the hearing and determination of this Application” Prima facie therefore, it seeks for an order of stay of proceedings in the cases listed in the said Application. Stay of proceedings is governed by the provisions of Order 42 Rule 6 of the Civil Procedure Rules as herein restated. 33.However, the Application is stated to be brought under Articles 48, 50 and 159(2)(d) of the Constitution, Sections 1A and 3A of the Civil Procedure Act, Orders 11 Rule 3 and 50(1) of the Civil Procedure Rules 2010. These cited provisions of the law cited by the Applicant in a nutshell relate to access to justice, fair hearing, the exercise of judicial authority, the objective of the Civil Procedure Act, the inherent power of the court, case management conference and the meaning of a calendar month. 34.In juxtaposing the stated intent of the Application by way of the prayers sought against the provisions of the law under which it is anchored, it is clearly apparent that the two are not in parity but are at odds with each other. The Applicants, have failed to demonstrate how each of the provisions that they have cited and more particularly Articles 48 and 50 of the Constitution and Orders 11 Rule 3 and 50(1) of the Civil Procedure Act are relevant and applicable to their application. This being the case, the only fall back provisions of the law from those cited are Sections 1A and 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution. 35.That said, even as the court takes cognizance of the fact that the inherent jurisdiction of the court as provided under Section 3A of the Civil Procedure Act can be invoked by a party at any time so as to prevent an abuse of the court process and also to ensure that the ends of justice and fairness as envisaged under Section 1A of the Civil Procedure Act and Article 159(2)(d) of the Constitution are met, this provision is only usually applicable on its own, as a relevant stand-alone provision of the law, where there is no specific and express provision that is immediately applicable to the needs of an applicant who seeks to benefit from its invocation. 36.That however is not the position in this Application. This is because there is indeed is a very clear and elaborate statutory provision as well as a plethora of case law that has been developed around this provision by courts over time that governs applications seeking stay of proceedings. This provision is Order 42 Rule 6(1) of the Civil Procedure Rules. On its terms it is discretionary and it provides as follows;“(1)No appeal or second appeal shall operate as a stay of execution or proceeding 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, 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. 37.The principles that guide the exercise of this discretionary power of the court have been variously set out by the courts in varied decisions including Global Tours & Travels Limited, Nairobi HC Winding Up Cause No. 43 of 2000, unde Christopher Ndolo Mutuku & Another vs CFC Stanbic Bank Limited (2015) eKLR , Kenya Wildlife Services v Jane Mutembi (2019) eKLR. 38.In these decisions, emphasis by the courts is on the fact that stay of proceedings is a serious grave and fundamental interruption of a party’s right to have their case heard and determined on its merits and in this regard therefore, it ought to be exercised sparingly and only in exceptional cases. Needless to state, the exercise of discretion by the court must be grounded on judicious principles. 39.In the case of Kenya Wildlife Services v Jane Mutembi (2019) eKLR, the court observed that stay of proceedings should not be confused with stay of execution pending appeal. Indeed, although Order 42 Rule 6(1) refers to stay of execution as well as stay of proceedings, Sub rule 2 is the one that solely applies to stay of execution. In this decision, Gikonyo J stated thus on stay of proceedings;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 proceedings is high and stringent.” 40.These guidelines on the threshold that needs to be met by parties in applications seeking for stay of proceedings has been aptly captured in Halsbury’s Law of England, 4th Edition, Vol. 37 page 330 and 332 as follows:“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the Court’s general practice is that a stay of proceedings should not be imposed unless the proceedings beyond all reasonable doubt ought not to be allowed to continue….This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases….It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.” 41.The principles for stay of proceedings pending appeal were set out in the case of William Odhiambo Ramogi & 2 others v the Honourable Attorney General & 3 others [2019] eKLR as follows:a.First, there must be an appeal pending before the higher Court;b.Second, where such stay is sought in the Court hearing the case as opposed to the higher Court to which the Appeal has been filed and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher Court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the Court to which an appeal is preferred because such a Court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly;c.Third, the Applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable;d.Fourth, the Applicant must demonstrate that the Appeal would be rendered nugatory if the stay of proceedings is not granted;e.Fifth, the Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; andf.Sixth, the Applicant must demonstrate that the application for stay was filed expeditiously and without delay. 42.In line with the foregoing guidelines, it is generally agreed that in an Application for grant of stay of proceedings, the matters that the Court must satisfy itself on are the following:a.That there must be an Appeal pending before a Higher Courtb.That the applicant has established a prima facie arguable case;c.That the application was filed expeditiously; andd.That the applicant has established sufficient cause to the satisfaction of the court that it is in the interest of justice to grant the orders sought. 43.The above said, it is clear that an order of stay of proceedings can only be granted pending an appeal against a decision of the court whose proceedings are sought to be stayed. It is to be noted that in the instant case, no Reference (Appeal) challenging any decision of the Taxing Master in all of the cited files has been filed. In this regards, the question posed by the Respondent Counsel then becomes relevant. The proceedings that are sought to be stayed in this regard then are pending what outcome 44.Further to the above, the procedure for the challenge of a taxing officer's decision is provided under Rule 11 of the Advocates Remuneration Order which provides:“(1)Should any party object to the decision of the taxing officer, he may within 14 days after the decision give notice in writing to the taxing officer of the items of taxation to which the objects.(2)The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.” 45.The Court of Appeal in Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR authoritatively held that compliance with Rule 11 is not a technicality but a jurisdictional prerequisite, and that a reference brought in the absence of such compliance is incompetent. Again in the instant case, nothing has been brought to the fore to demonstrate that these mandatory legal provisions were complied with by the Applicant. 46.Still on this issue, I do agree with the Respondent Counsel that it is not clear from their Application what it is that the Applicant is seeking. The court is unable to tell whether this Application is a Reference or whether the Applicant is seeking a review and if it be a review that they seek, based on the unconverted deposition of the Respondent Counsel that some References were already filed and disposed of before the Environment and Land Court, the question then arises on whether this court has the jurisdiction to review the decisions of the Environment and Land Court and the answer is in the negative by dint of the provisions of Articles 162(2) and 165(5) of the Constitution. 47.Turning to the second issue of consolidation of suits, the principle that governs a trial Court’s exercise of jurisdiction to consolidate suits is well settled. The Supreme Court of Kenya outlined the relevant guiding principle in the case of Omoke v Kenyatta & 83 others [2021] KESC 27 (KLR), as follows:“Consolidation of suits or appeals will be ordered where there are common questions of either law or fact in two or more suits or appeals and where it is desirable that all the related matters be disposed of at the same time.” 48.The above being the case and without much ado on this issue, even though it can be said that there is one common cross cutting issue in all the Applications sought to be consolidated, the court notes that the assertion by the Respondent Counsel that all these cases are, and/or were, before different courts, with different jurisdictions, and that all are at different stages of hearing and determination and/or execution, to consolidate them would offend the twin doctrines of res judicata and sub judice has not at all been rebutted and/or substantially challenged by the Interested Party/Applicant, the court is satisfied that the order for consolidation sought is misconceived and lacks merit. 49.From my above conclusions, it is my finding that the Interested party/Applicant’s Application is not only incoherent and incompetent, it is also incurably defective, misconceived and bad in law and the same in the circumstances is accordingly struck out in its entirety with costs to the Respondent. READ DATED AND SIGNED VIRTUALLY AT BUNGOMA ON 3RD JUNE 2026E. OMINDEJUDGE