https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4187

Kariankei v Nkoitiko (Environment and Land Miscellaneous Case E001 of 2025) [2026] KEELC 4187 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEELC 4187 (KLR) Republic of Kenya In the Environment and Land Court at Narok Environment and Land Miscellaneous Case E001 of 2025 LN Gacheru, J June 18, 2026 Between Kantet ole Kariankei Applicant and Martine ole Nkoitiko Respondent Ruling 1.The matter for determination is the Applicant’s Notice of Motion Application dated 28th November 2025, brought under Section 41 of the Appellate Jurisdiction Act, Rule 11(3) of the Advocates (Remuneration) Order, and all other enabling provisions of law, wherein the Applicant sought the following orders:a.That leave be granted to the Applicant to file an Appeal to the Court of Appeal of Kenya against the Ruling of this Honourable Court made on 13th November 2025.b.That this Honourable Court do order a stay of execution of the Ruling delivered on 13th November 2025, or Certificate of costs pending the filing of the actual Appeal by the Applicant in the Court of Appeal.c.Costs of this Application to be provided for. 2.The Application was supported by the grounds set out on the face of the Application, and on the Supporting Affidavit of Kantet Ole Kariankei, the Applicant herein sworn on even date. 3.The Application is further supported by the following grounds: -a.That the Applicant is aggrieved by the Ruling of this Honourable Court and have since lodged a Notice of Appeal with the Deputy Registrar of the Environment & Land Court at Narok on 25th November 2025.b.That it is a statutory requirement that any party aggrieved by the Ruling of a Judge in Reference must first obtain leave from the Judge prior to filing an Appeal in the Court of Appeal.c.That it is desirable that the concerns of the Applicant be put before the Court of Appeal in an appeal to be re-examined by another set of adjudicators.d.That the Applicant will suffer substantial loss unless the orders sought are granted.e.The Respondent stands to suffer no prejudice should the Application be allowed and that the substantive justice requires that the status quo be maintained until the intended Appeal is filed in the Court of Appeal.f.That this Application has been made without unreasonable delay. 4.In his Supporting Affidavit sworn on 18th November 2025, the Applicant reiterated the grounds in support of the instant Application, and urged the court to allow the application entirely. 5.In response to the instant Application, the Respondent herein Martine Ole Nkoitiko , filed his Grounds of Opposition dated 13th March 2026, and stated as follows:a.That this instant Application is Res Judicata in so far as it purports to address issues on errors of principle, which the Court has already exercised its appellate jurisdiction to correct the only discernible errors of principle in the taxation, specifically by striking out Ksh 333,333.33 in getting-up fees and Ksh 534,245.60 in VAT. Under Paragraph 11 of the Advocates (Remuneration) Order, the court's intervention in a taxation reference is limited to errors of principle. Having already corrected these, there is no further grievance that warrants the attention of the Court of Appeal.b.That the Applicant has not provided any evidence to show that he will suffer substantial loss if a stay of execution is not granted, which is a mandatory requirement under Order 42 Rule 6 of the Civil Procedure Rules.c.That the Court correctly held that the value of the subject matter was unascertainable from the pleadings, granting the Taxing Master the discretion to award reasonable instruction fees. An appeal on this point does not raise a settled principle of law but merely seeks to challenge the Court's exercise of judicial discretion.d.That the intended appeal is contrary to Article 159(2)(b) and (d) of the Constitution of Kenya, 2010 as it seeks to delay justice through technicalities after the Court has already provided substantial relief by significantly reducing the taxed costs.e.That the application is a strategy to prevent the Respondent from realizing the fruits of a judgment that has already been subject to a successful reference and substantial reduction by this Court.f.In the circumstances, the instant Application is bad in law, incompetent, incurably defective and otherwise constitutes an abuse of the court process and thus ought to be dismissed with costs. 6.The Application was canvassed by way of written submissions, wherein the Applicant filed his written submissions dated 13th April 2026, and in support of his Notice of Motion Application, and discerned only two valid “Grounds of Opposition” namely:a.That the application is purportedly res judicata; andb.That a stay of execution is not merited due to risk for substantial loss. 7.On the issue of res judicata, the Applicant submitted that the present application is not barred by the doctrine of res judicata, as alleged by the Respondent. He contended that the application is a necessary prerequisite for the intended appeal to the Court of Appeal in the matter, and that no previous application seeking similar relief has been determined by this Court. Consequently, he argued that the plea of res judicata is unfounded and inapplicable in the circumstances. 8.The Applicant further submitted that under Paragraph 11(3) of the Advocates Remuneration Order, an appeal against a judge’s decision on a taxation reference lies to the Court of Appeal only with leave of the judge. He argued that there is no automatic right of appeal, and that the court has discretion to grant leave where an intended appeal raises arguable issues. 9.The Applicant contended that he intends to challenge the reference ruling before the Court of Appeal on the following issues:i.Principle on determining the value of the subject matter and instructions fee.ii.An unqualified person’s entitlement to legal fees.iii.The party and party fees ultimately manifestly expensive. 10.Further, the Applicant submitted that these issues raised substantive questions of law and principle suitable for determination by the Court of Appeal, and that addressing them in the present application would amount to re-arguing the reference. 11.On the prayer for stay of execution, the Applicant submitted that he seeks stay of execution pending the intended appeal, and argued that no prejudice would be occasioned to the Respondent if stay was granted pending the filing and determination of the appeal. 12.The Applicant further submitted that the substantive suit from which the Bill of costs arose, namely Narok ELCA No. E009 of 2022, was itself the subject of a pending appeal before the Court of Appeal at Nakuru being COACA No. E135 of 2023. It was his further argument that the appeal had already undergone case management, and was awaiting hearing, and that the Court of Appeal had issued status quo orders. On that basis, he contended that execution of the taxed costs was premature. 13.Finally, the Applicant submitted that the Respondent had not filed a Replying Affidavit to controvert the factual averments in support of the application, and that he had already filed a Notice of Appeal in compliance with Rule 77 of the Court of Appeal Rules, 2022. Therefore, he urged the court to grant him leave to appeal against the reference ruling to the Court of Appeal, and to grant a stay of execution pending the intended appeal. 14.The Respondent filed his written submissions dated 20th April 2026, in opposition to the instant Notice of Motion, and raised the following issues for determination:a.Whether the application for leave to appeal meets the statutory threshold under the Advocates (Remuneration) Order.b.Whether the Applicant has satisfied the mandatory requirements for stay of execution.c.Whether the application is res judicata or otherwise an abuse of court process.d.Who should bear the costs of the application. 15.On whether the application for leave to appeal meets the statutory threshold under the Advocates (Remuneration) Order, the Respondent submitted that the court’s jurisdiction in a taxation reference is limited to correcting errors of principle. He also submitted that in its ruling of 13th November 2025, the court had already exercised that jurisdiction, and corrected the only discernible errors by striking out Kshs. 333,333.33 awarded as getting-up fees and Kshs. 534,245.60 awarded as VAT. 16.The Respondent relied on the case of Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR, where the court held that courts do not ordinarily interfere with the discretion of a taxing officer unless there is an error of principle and that matters of quantum are primarily within the taxing officer’s discretion. 17.Further, that the Applicant’s intended appeal merely challenged the Taxing Master’s discretion regarding instruction fees, which discretion does not raise a settled principle of law; rather that it contests judicial discretion, which is not a ground for appeal; and the court’s finding that the value of the subject matter was unascertainable. According to the Respondent, the remaining grievance concerned quantum rather than any unresolved error of principle and therefore did not justify the grant of leave to appeal. 18.On whether the Applicant has satisfied the mandatory requirements for stay of execution, the Respondent submitted that the Applicant had failed to satisfy the following requirements as provided under Order 42 Rule 6(2) of the Civil Procedure Rules:“For stay to be granted, the Applicant must demonstrate:a.The substantial loss that may result to the Applicant unless the order is made;b.That the application has been made without unreasonable delay; andc.That 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.” 19.He argued that in his Supporting Affidavit, the Applicant has not demonstrated he will suffer any substantial loss, and he only made vague assertions of irreparable harm. 20.Citing the case of Nguruman Limited v Jan Bonde Nielsen & 2 Others (Supra), the Respondent submitted that substantial loss must be actual, demonstrable and incapable of being adequately compensated by damages. 21.The Respondent maintained that the subject matter of the intended appeal was a costs award, which was purely monetary in nature and therefore refundable should the appeal succeed. He further argued that the Applicant had failed to make a categorical offer of security for the due performance of the decree as required by Order 42 Rule 6(2)(c) of the Civil Procedure Rules 2010, rendering the application defective. It was his position that granting a stay without proof of substantial loss would unjustifiably deprive him of the fruits of his judgment. 22.On whether the application is res judicata or otherwise an abuse of court process, the Respondent submitted that the doctrine of res judicata as embodied in Section 7 of the Civil Procedure Act barred the Applicant from re-opening issues that had already been determined in the taxation reference. 23.He argued that the court had previously heard and determined the Applicant’s complaints concerning the taxation of the bill of costs, and had rendered a final decision after correcting the errors of principle identified. 24.Further, he argued that the present application sought to re-litigate the same issues before the Court of Appeal without identifying any new point of law, thereby amounting to a “merry-go-round” of litigation; and that the application constituted an abuse of the court process because it was intended to delay the finality of the dispute and prevent him from enjoying the fruits of his judgment. 25.Reliance was placed on the Nigerian Case of KARIBU-WHYTE J Sc in SARAK v KOTOYE (1992) 9 NWLR 9pt 264) 156 at 188 – 189 (e) in defining the concept of abuse of judicial process, where the court held as follows;“The concept of abuse of judicial process is imprecise, it implies circumstances and situations of infinite variety and conditions. It’s one feature is the improper use of the judicial powers by a party in litigation to interfere with the administration of justice …” 26.The Respondent invoked Article 159(2)(b) of the Constitution and Sections 1A and 1B of the Civil Procedure Act, arguing that courts are obligated to facilitate the just, expeditious and efficient resolution of disputes and should not countenance unnecessary prolongation of litigation. 27.On who should bear the costs of the application, Respondent submitted that the award of costs is a matter within the discretion of the court, though the general principle is that costs follow the event unless the court, for good reason, orders otherwise. 28.In support of this proposition, the Respondent relied on Section 27(1) of the Civil Procedure Act, and the decision in Republic v Rosemary Wairimu Munene, Ex Parte Applicant v Ihururu Dairy Farmers Co-operative Society Ltd, as cited by Mativo J( as he then was) in Misc. Civil Application No. 19 of 2015, where the Court held that although costs are discretionary, the basic rule is that costs follow the event, and are intended to compensate the successful party for the trouble and expenses incurred in prosecuting or defending a case rather than to punish the unsuccessful party. 29.Therefore, the Respondent urged the court to dismiss the instant application and award him costs thereof as the successful party. 30.The court has carefully considered the instant Notice of Motion Application, the Supporting Affidavit, the Grounds of Opposition and the rival written submissions as filed by the parties, and finds the issues that arise for determination are: -i.Whether the present application is barred by the doctrine of res judicata.ii.Whether the Applicant has established sufficient grounds for the grant of leave to appeal to the Court of Appeal against the ruling delivered on 13th November 2025.iii.Whether the Applicant has satisfied the conditions for the grant of stay of execution pending the intended appeal.iv.Who should bear the costs of the application? Whether the present application is barred by the doctrine of res judicata. 31.The Respondent's first objection is that the instant application is res judicata. The doctrine of res judicata is codified under Section 7 of the Civil Procedure Act ,which provides that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, and has been heard and finally determined by a court of competent jurisdiction. 32.The rationale of the doctrine was succinctly stated by the Court of Appeal in Independent Electoral and Boundaries Commission v Kiai & 5 others [2017] KECA 477 (KLR), where the Court held that for res judicata to apply, the matter in issue must be directly and substantially the same as that in the former proceedings, between the same parties, litigating under the same title, and must have been finally determined by a court of competent jurisdiction. 33.In the present case, the Respondent argues that the court already determined the Applicant's grievances regarding taxation in the reference culminating in the ruling delivered on 13th November 2025, and that the Applicant is seeking to re-open the same issues through the present application. 34.The court has carefully considered that argument. However, the application before the court does not invite the court to revisit, review or vary the findings made in the taxation reference. Rather, the Applicant seeks leave to appeal against that decision and a stay of execution pending the intended appeal. Consequently, this court finds and holds that this Application is not res judicata. 35.On whether leave should be granted under Paragraph 11(3) of the Advocates (Remuneration) Order and whether execution ought to be stayed pending an intended appeal are issues that were neither raised nor determined in the reference proceedings. Consequently, the matters presently before the court are distinct from those determined in the ruling of 13th November 2025. The plea of res judicata is therefore misconceived and fails. 36.ii).Whether the Applicant has established sufficient grounds for the grant of leave to appeal to the Court of Appeal against the ruling delivered on 13th November 2025. 37.On whether the Applicant has established sufficient grounds for the grant of leave to appeal, Paragraph 11(3) of the Advocates (Remuneration) Order provides that an appeal shall lie to the Court of Appeal from a decision of a judge upon a reference only with leave of the judge. The grant of leave is discretionary and is intended to filter out frivolous appeals while permitting appeals that raise bona fide and arguable points deserving consideration by the appellate court. 38.The Applicant contends that the intended appeal raises questions regarding the principles applicable in determining instruction fees where the value of the subject matter is unascertainable, whether legal fees were recoverable in the circumstances of the case, and whether the resultant award of costs was manifestly excessive. While this court pronounced itself on those issues in the impugned ruling, this court is not persuaded that the intended appeal is frivolous or entirely devoid of merit. 39.At this stage, the court is not required to determine whether the appeal will ultimately succeed. The court need only be satisfied that the intended appeal raises arguable questions deserving consideration by the Court of Appeal. The court is satisfied that the Applicant has met that threshold. Accordingly, this court finds and holds that leave to appeal should be granted. Whether the Applicant has satisfied the conditions for the grant of stay of execution pending the intended appeal. 40.On the prayer for stay of execution, the applicable principles are set out under Order 42 Rule 6(2) of the Civil Procedure Rules. The Applicant must demonstrate that substantial loss may result unless the order is granted, that the application was brought without unreasonable delay and that security for the due performance of the decree has been offered. 41.The impugned decree relates to taxed costs and is therefore a monetary decree. The Applicant has not demonstrated, through cogent evidence, that the Respondent would be incapable of refunding the decretal sum should the intended appeal succeed. Equally, no specific evidence of substantial loss has been tendered beyond general apprehensions of execution. 42.Nonetheless, the court must balance the Applicant's right of appeal against the Respondent's right to enjoy the fruits of his judgment. Having granted leave to appeal, This Court is of considered view that a conditional stay would best serve the interests of justice and preserve the substratum of the intended appeal while safeguarding the Respondent's interests. 43.In the premises, the Notice of Motion application dated 28th November 2025, is merited, succeeds in part and is allowed on the following terms: -a.Leave is hereby granted to the Applicant to appeal to the Court of Appeal against the ruling delivered on 13th November 2025.b.There shall be a stay of execution of the Certificate of Costs and all consequential processes pending the filing and determination of the intended appeal on condition that the Applicant deposits the entire decretal sum in an interest-earning joint account in the names of the advocates for the parties within forty-five (45) days from the date of this ruling.c.In default of compliance with order (b) above, the stay granted herein shall automatically lapse.d.As each party has succeeded in part, each shall bear his own costs of the application.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 18TH DAY OF JUNE 2026.L. GACHERUJUDGEDelivered In the presence of:Elijah Meyoki – Court AssistantMr. Okinyi for the ApplicantM/s Mualuko H/B for Mr Tuya for the Respondent