https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1376

Ochieng v Awanad Enterprises Ltd & 2 others (Civil Application E105 of 2025) [2026] KECA 1376 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1376 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Application E105 of 2025 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA July 10, 2026 Between Laban Owino Ochieng Applicant and Awanad Enterprises Limited 1st Respondent Pili Management Consultants Limited 2nd Respondent Hezron Awiti Bollo 3rd Respondent (An Application for Stay of Execution Pending hearing and determination of an intended Appeal from the Ruling and Order of the Employment and Labour Relations Court at Mombasa(Ocharo Kebira, J.) delivered on 27th November 2025 inELRC Cause No. 22 of 2019) Ruling 1.Laban Owino Ochieng’, the Applicant’s Notice of Motion dated 18th December 2025 is brought pursuant to Rule 5(2)(b) of the Court of Appeal Rules, 2022; Articles 25(c), 48, 50(1) and 159(2)(d) of the Constitution and all other enabling provisions of the law; and Section 3A of the Appellate Jurisdiction Act, seeking, inter alia:a)Pending the hearing and determination of the intended appeal as per the Notice of Appeal filed on 11th December 2025, there be an immediate and unconditional stay of execution of the Ruling/Decree of the Employment and Labour Relations Court at Mombasa delivered on 27th November 2025; and All warrants of attachment, proclamations, valuations, advertisements for sale, public auctions, or any other consequential proceedings arising therefrom or connected to the taxation of costs in ELRC Cause No. 22 of 2019.b.The Respondents, whether by themselves, their agents, servants, auctioneers, employees, or any person acting under their authority or instruction, be and are hereby restrained from attaching, removing, seizing, selling by public auction or private treaty, transferring, charging, alienating, or in any other manner whatsoever interfering with the Applicant’s movable and/or immovable property, pursuant to the said warrants or any other process for execution, pending the hearing and determination of the appeal.c.The costs of this application be provided for”. 2.The Motion is brought on grounds that: the Applicant filed a Notice of Appeal on 11th December 2025 and requested for typed proceedings; that the intended appeal is not frivolous but is anchored on substantial and arguable questions of law and fact with a high probability of success, for the reason that there was a fundamental error by the trial court in failing to find that the Respondents’ procurement of three separate taxed Bills of Costs is an abuse of process; that the learned Judge failed to adjudicate upon the Applicant’s core contention that the Respondents’ procurement of three separate taxed Bills of Costs from a single cause of action and a single contract, constituted a gross abuse of the court’s process, a travesty of justice, and an instrument of unjust enrichment; that there was a misdirection on the advocate’s negligence, and failure to inform the Applicant of the taxation proceedings contrary to the established jurisprudence that a litigant should not be visited with the mistakes of his counsel, absent collusion or bad faith; and that the learned Judge was in error in failing to appreciate that ELRC Cause No. 22 of 2019 was void ab initio for want of jurisdiction. 3.The Applicant contended that its original suit was properly instituted in the Chief Magistrates Court, but was unprocedural and administratively transferred to the Employment and Labour Relations Court by the court’s registry in the absence of a judicial order; and that the court subsequently dismissed the suit for lack of jurisdiction, expressly recognizing that it was improperly lodged. It was contended that, for this reason, an arguable question of law has arisen as to whether a court that has declared a suit a nullity can, in the same breath, lawfully tax costs emanating from such proceeding, and whether the costs should be taxed in the Employment and Labour Relations Court or the Chief Magistrates Court. 4.It was further contended that the substratum of the appeal—the Applicant’s right to property and the opportunity to challenge an unlawful costs decree—will be extinguished if execution proceeds, since any attachment and sale will subject the Applicant’s specific movable and immovable property to an irreversible process, which will render any successful appeal nugatory; and that granting stay of execution is imperative to uphold the integrity of the judicial process, prevent an abuse facilitated by the lower court’s errors, and in the interest of justice. 5.The motion is supported by the applicant’s affidavit which in large part reiterated the grounds of the application. Annexed to the application is a Notice of appeal dated 9th December 2025. 6.In a replying affidavit sworn on 20th January 2026, Hezron Awiti Bollo, the 3rd Respondent and a director of the 1st and 2nd Respondents, deposed that the Applicant was ordered to pay costs to him and the 1st and 2nd Respondents after the Applicant’s claim against them in the Employment and Labour Relations Court was dismissed. It was further deposed that the costs in the Employment and Labour Relations Court were taxed in the year 2021, and that the Applicant had always been aware of the taxation and the need to settle the taxed costs, but had failed to do so; that the Applicant’s application for extension of time to challenge the taxation was properly dismissed by the Employment and Labour Relations Court because the Applicant had failed to explain the inordinate delay in filing any reference against the taxation. 7.The deponent further stated that the order dismissing the Applicant’s application for extension of time was incapable of being stayed because the order did not require the Applicant to do anything or restrain him from doing anything. He additionally deposed that the Applicant’s allegation that the Respondents would be unable to refund the costs awarded against the Applicant in the event the intended appeal succeeded was unfounded; that he was a businessman capable of refunding the costs in the unlikely event that the intended appeal succeeded; and that the 1st and 2nd Respondents were robust business entities equally capable of refunding any sums awarded. 8.When the application came up for hearing, learned counsel Ms. Naswa holding brief for Mr. Mosi appeared for the Applicant while learned counsel Mr. Amuga appeared for the Respondents. In their written submissions, the Applicant submitted that the present motion is properly brought under Rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution pending hearing and determination of the intended appeal from the ruling of the Employment and Labour Relations Court delivered on 27th November 2025; that the intended appeal is arguable because it raises a fundamental jurisdictional question, that is, whether his original claim that was properly filed in the Chief Magistrates’ Court, but was administratively transferred to the Employment and Labour Relations Court, without issuance of a judicial order, and subsequently dismissed the suit for want of jurisdiction, can lawfully give rise to a taxation or enforce costs based on the nullified proceedings. 9.The Applicant further submitted that, unless stay is granted, the intended appeal will be rendered nugatory since warrants of attachment have already been issued and execution would result in attachment and sale of his movable and immovable property, which process would be irreversible; that, additionally, the Respondents’ ability to refund the monies recovered is doubtful, as the 2nd Respondent is subject to a decree of approximately Kshs.195,000,000 and entities under its control face liabilities of approximately Kshs.600,000,000, thereby diminishing the likelihood of restitution should the appeal succeed. 10.In their written submissions, the Respondents oppose the motion and submitted that it is incompetent and devoid of merit; that the impugned ruling and order of 27th November 2025 arose from the Applicant’s application dated 4th December 2024 in which he sought leave to file a reference out of time against taxation of costs, declarations that the taxation was null and void, and orders setting aside the taxing master’s decision. 11.The Respondents further submitted that the ruling gave rise to a negative order because the Applicant’s prayers were declined and the application dismissed with costs; that, in the circumstances, there is nothing capable of being stayed under Rule 5(2)(b). In support of that proposition, they relied on the case of Kaushik Panchamatia & 3 Others vs Prime Bank Ltd & Another [2020] eKLR, where the Court held that a stay cannot issue in respect of a negative order; that, further, under Rule 11 of the Advocates Remuneration Order, no right of appeal lies from the decision challenged without leave of the court, and that the Applicant neither sought nor obtained such leave. Consequently, they contend that no competent appeal lies before this Court. 12.On the nugatory limb, the Respondents submitted that the Applicant has not shown how payment of taxed costs would render the intended appeal nugatory, since costs are a monetary claim capable of refund; and that the Applicant’s allegations regarding their financial inability to refund are irrelevant and unsupported. 13.As a brief background, the Applicant sued the Respondents jointly and severally, together with the Habo Group of Companies, claiming Kshs.27,605,707.30, being commission allegedly payable to him at the rate of 3% of all proceeds from the Respondents’ projects, as well as general damages, compensation, and costs. He claimed that, when the projects were completed and handed over to the 2nd Respondent in 2017, and despite successful completion, the Respondents failed, refused, or neglected to pay his commission. The suit was subsequently dismissed on 27th September 2019 for want of jurisdiction with costs to the Respondents. 14.Thereafter, the Respondents filed separate Party and Party Bills of Costs for taxation before the Deputy Registrar of the Employment and Labour Relations Court. The taxation proceedings culminated in rulings delivered on 9th February 2021 where the 2nd and 3rd Respondents’ Party and Party Bills of Costs were each taxed at Kshs. 659,415,605. Following the taxation, the Respondents commenced execution proceedings against the Applicant. Aggrieved by the taxation and the ensuing execution process, the Applicant filed a Notice of Motion dated 4th December 2024 before the Employment and Labour Relations Court principally seeking to challenge the taxation proceedings and stay execution. In the application, the Applicant sought, inter alia, leave to file a reference out of time against the taxing master’s decision on taxation of costs that had culminated in the Notice to Show Cause dated 3rd April 2024. He further sought a declaration that the taxation proceedings and the decision on taxation of costs issued in ELRC Cause No. 22 of 2019 were null and void ab initio; an order setting aside the taxing master’s decision and referring the taxation afresh; an order for stay of execution of the decree; and an order staying further proceedings. The Respondents opposed the application. 15.Upon considering the application, affidavits and submissions by the parties, the learned Judge was not satisfied that the Applicant was not aware of the taxation proceedings and, in a ruling of 27th November 2025, dismissed the Applicant’s application, hence this motion now before us. 16.We have considered the motion, the respective parties’ replies and the submissions. We begin by observing that the Respondents have raised a jurisdictional question, which is that, under Rule 11 of the Advocates Remuneration Order, no right of appeal lies from the decision challenged without leave of the court, and that the Applicant neither sought nor obtained such leave. Consequently, they contend that no competent appeal lies before this Court. We have considered the record and, indeed, there is nothing that shows that the Applicant sought leave of the trial court to appeal to this Court. 17.Rule 11 which relates to objections from decisions on taxation and appeals to this Court provides:“(1)Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he 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.3.Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.(4)…” 18.In other words, Paragraph 11 of the Advocates Remuneration Order is with reference to the procedure for lodging objections from a taxing officer's decision by way of a reference before the High Court and with leave, appeals arising from the determination of such references. The present application, however, is not an appeal from a judge's determination of a reference under Paragraph 11(2) of the Advocates Remuneration Order. Rather, the Applicant has lodged a Notice of Appeal against the Ruling of the Employment and Labour Relations Court delivered on 27th November 2025 dismissing his application for enlargement of time, setting aside the taxation, and other consequential reliefs. The intended appeal challenges the exercise of the learned Judge's discretion in declining to enlarge time and the legal conclusions reached in that ruling. It is therefore not an appeal against a reference as contemplated under Paragraph 11(3) of the Advocates Remuneration Order. 19.In the premises, the Respondents' objection founded on Paragraph 11 is without merit and does not deprive this Court of jurisdiction to entertain the present application. 20.We will now turn to consider the application for stay of execution. The principles governing applications under Rule 5(2)(b) are settled. An applicant must satisfy the Court, first, that the intended appeal is arguable, that is, not frivolous; and second, that unless the orders sought are granted, the intended appeal, if successful, would be rendered nugatory. Both limbs must be satisfied. See Reliance Bank Ltd (In Liquidation) vs Norlake Investments Ltd [2002] 1 EA 227.And, in the case of Trust Bank Limited and Another vs Investech Bank Limited and 3 Others [2000] eKLR, this Court delineated the jurisdiction of this Court in such an application as follows: 21.The jurisdiction of the Court under Rule 5(2)(b) is original and discretionary and it is trite law that to succeed an applicant has to show firstly that his appeal or intended appeal is arguable, to put another way, it is not frivolous and secondly that unless he is granted a stay the appeal or intended appeal, if successful will be rendered nugatory. These are the guiding principles but these principles must be considered against facts and circumstances of each case…” 22.As concerns the first limb on whether the intended appeal is arguable, the Applicant raises a jurisdictional question of whether a court that has declared a suit a nullity can, in the same breath, lawfully tax costs emanating from such proceeding, and whether the costs should be taxed in either the Employment and Labour Relations Court or the Chief Magistrates Court. We consider this to be an arguable issue worthy of ventilation before this Court. 23.On the nugatory aspect, it is not lost on us that the Ruling of the Employment and Labour Relations Court dated 27th November 2025 dismissed the Applicant’s Notice of Motion dated 4th December 2024 in which he had sought enlargement of time to file a reference against taxation, nullification of the taxation proceedings, and the setting aside of the taxing master’s decision. The decision was plainly a negative order as it did not order any party to do any positive act nor restrain any party from acting. The law is settled that a negative order is not capable of being stayed. In the case of Registered Trustees, Kenya Railways Staff Retirement Benefits Scheme vs Millimo, Muthomi & Co. Advocates & 2 others (Civil Appeal (Application) E383 of 2021) [2022] KECA 491 (KLR), this Court held that negative orders cannot be stayed. 24.Further, in the case of Kenya Commercial Bank Limited vs Tamarind Meadows Limited & 7 Others [2016] eKLR, this Court expounded on stay of execution orders stating:In Kanwal Sarjit Singh Dhiman vs Keshavji Juvraj Shah [2008] eKLR, the Court of Appeal, while dealing with a similar application for stay of a negative order, held as follows: 25.The 2nd prayer in the application is for stay (of execution) of the order of the superior court made on 18th December, 2006. The order of 18th December, 2006 merely dismissed the application for setting aside the judgment with costs. By the order, the superior court did not order any of the parties to do anything or refrain from doing anything or to pay any sum. It was thus, a negative order which is incapable of execution save in respect of costs only (see Western College of Arts & Applied Sciences vs. Oranga & Others [1976] KLR 63 at page 66 paragraph C). See Western College of Arts and Applied Sciences v EP Oranga & 3 others [1976] KECA 15 (KLR)” 26.In the case of Raymond M. Omboga vs Austine Pyan Maranga Kisii HCCA No 15 of 2010, Makhandia, J (as he then was) stated thus:“The order dismissing the application is in the nature of a negative order and is incapable of execution save, perhaps, for costs and such order is incapable of stay. Where there is no positive order made in favour of the respondent which is capable of execution, there can be no stay of execution of such an order...The applicant seeks to appeal against the order dismissing his application. This is not an order capable of being stayed because there is nothing that the applicant has lost. The refusal simply means that the applicant stays in the situation he was in before coming to court and therefore the issues of substantial loss that he is likely to suffer and or the appeal being rendered nugatory do not arise..." 27.In the present matter, what the Applicant seeks in substance is to suspend the consequences of an earlier decree arising from taxation of costs. However, the impugned ruling did not create any fresh executable obligation; it merely declined to disturb existing orders. In effect, the court issued a negative order, for which there is nothing to stay. As a consequence, we find that the Applicant has failed to satisfy the second criterion. 28.In sum, the Applicant having failed to meet the established threshold for the grant of an order of stay of proceedings under Rule 5 (2) (b) of the Rules, the Notice of motion dated 18th December 2025 lacks merit and is hereby dismissed. Costs in the appeal.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 10TH DAY OF JULY, 2026.A. K. MURGOR........................................JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb.........................................JUDGE OF APPEALG. W. NGENYE-MACHARIA........................................JUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR