Odhiambo Owiti & Company Advocates v UAP Insurance Co. Limited (Miscellaneous Civil Application 8 of 2021) [2026] KEHC 8162 (KLR) (9 June 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **MISC CIVIL APPLICATION NO. 8 OF 2021** **ODHIAMBO OWITI & COMPANY ADVOCATES……………………ADVOCATE** **VERSUS** **UAP INSURANCE CO. LIMITED…………………………………….RESPONDENT** **Coram: Before Justice R. Nyakundi** **M/s Odhiambo Owiti & Co Advocates** **M/s Ogejo, Omboto & Kijala Advocates LLP** **RULING** 1. What is pending before this Honourable Court for determination is a Notice of Motion Application dated 27th April 2026 premised under section 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules 2010 in which the Advocate/Applicant is seeking the following orders: - 2. *Spent* 3. *Spent* 4. *That an order be and is hereby issued staying all further taxation proceedings and/or any execution of the costs awarded by this Honourable Court in the Ruling delivered18th December 2025 pending the hearing and determination of the Applicant’s intended appeal to the Court of Appeal.* 5. The Application is made on the following grounds on the face of it among others: - 6. By a Ruling of this Honourable Court dated and delivered on the 18th December 2025, the Applicant’s Notice of Motion Application dated the 16th of December 2021, seeking the adoption of the Certificate of Costs issued herein in relation to the Advocate/Client Bill of costs dated 27th January 2021 as judgment and decree of the court, was dismissed with costs to the respondent/client. 7. Being aggrieved by and dissatisfied with the said Ruling, the Applicant/Advocate filed Notice of Appeal on 23rd December 2025 and served the same upon the Respondent/Client’s Advocates on the same date. A request for typed proceedings and a certified copy of the Order arising from the Ruling was also filed and served on the same date. 8. Consequent upon Ruling awarding costs to the Respondent/Client, the Respondent/Client has filed a Bill of Costs dated 28th January 2026 against the Applicant/Advocate, which has been scheduled for taxation before the Deputy Registrar on 29th April 2026. 9. Unless the application is heard and determined on an urgent basis and the orders sought seeking stay of the taxation proceedings granted, the taxation of the said Bill of Costs will proceed as scheduled and if concluded and a Certificate of Costs issued, the Respondent/Client will be in a position to execute against the Applicant/Advocate for the taxed costs, thereby potentially rendering the intended appeal to the Court of Appeal nugatory and defeating its purpose. 10. The Application is supported by the annexed Affidavitdated 27th April 2026 sworn by Jael A. Onyango. He deponed that he had the personal conduct of this matter hence competent to swear the affidavit. He stated that their firm was retained to protect the Respondent’s interests as the client in **Vihiga PMCC No 105 of 2015\_Carren Gumba Owiti vs Saulo Omondi Imbeo & Others** and that upon conclusion of the matter, they filed an Advocate/Client Bill of Costs dated 27th January 2021 which was taxed in the sum of Kshs 198,930.50 and a Certificate of Costs was issued accordingly. He contended that further, they filed a Notice of Motion dated 16th December 2021 seeking among other orders, the adoption of the said Certificate of Costs as a Judgment of this court and an award of interest at 14% per annum from 27th September 2019 until payment in full on the taxed costs pursuant to Rule 7 of the Advocates (Remuneration) Order. 11. He further averred that on 18th December 2025, this court delivered a Ruling dismissing their application with costs to the Respondents. He asserted that being aggrieved with the said decision, they filed a Notice of Appeal on 23rd December 2025 pursuant to Rule 77 of the Court of Appeal Rules, 2022 against the whole of the Ruling and the same was duly served upon the Respondent’s Advocate on the same date via email. He asserted that on 23rd December 2025, they filed and served a letter addressed to the Deputy Registrar of the High Court at Vihiga requesting for a typed copy of the proceedings herein and a certified copy of the order arising from the impugned Ruling. He was emphatic that they had done all things necessary to formally initiate and preserve its intended appeal to the Court of Appeal. 12. He pointed out that consequent upon the costs awarded by the impugned Ruling, the Respondent had filed a Bill of Costs dated 28th January 2026 against them in these proceedings and the said Bill of Costs had been scheduled for taxation on 29th April 2026 before the Deputy Registrar of this court. It was his contention that if the taxation proceedings were allowed to proceed as scheduled and a Certificate of Costs issued, the Respondent would be at liberty to proceed to enforce and execute the same against them. He added that such execution would render the intended appeal nugatory and even if the appeal is allowed, it would not restore their position. 13. He was categorical that the intended appeal raised arguable and substantive points of law with a high likelihood of success and that they ought to be afforded an opportunity to ventilate the same on appeal without the risk of execution and potential loss of any taxed costs pending the determination of the appeal. He argued that the balance of convenience tilted in favour of granting the stay of proceedings sought as the Respondent would not suffer any prejudice as the entitlement to the costs would be determined finally upon the resolution of the appeal. He added that the advocates on the other hand would suffer substantial and potentially irreparable prejudice if the taxation proceeds and execution follow before the appeal is determined. 14. The Applicant also filed a further Affidavit sworn by Winnie Anuro on 19th May 2026 in support of the said application annexing their draft Memorandum of Appeal to the Court of Appeal. **Replying Affidavit** 1. The Application was opposed vide a Replying Affidavit dated 22nd May 2026 sworn by James Mundia Okwemba. He deponed that he had the conduct of this matter on behalf of the Respondent. It was his case that the Advocates/Applicants had not demonstrated what substantial and irreparable loss they would suffer should the matter proceed for taxation. He argued that it would have made sense for the matter to proceed for taxation and after taxation, the Advocates would have opted to either file a reference if dissatisfied with the decision of the taxing master or file an application for stay of execution pending their intended appeal. 2. It was his argument that the Advocates had jumped the gun by filing this instant application prematurely and that the intended appeal did not raise any triable issues since their application dated 16th December 2021 and filed on 17th March 2022 was dismissed by Kamau J on grounds inter alia that they filed the said application after they had already been paid their taxed costs. 3. He was emphatic that based on the foregoing, it followed that the intended appeal had no real chance of success and was just aimed at unjustifiably delaying the taxation process. He added that the Advocates had not offered any security for stay of execution. He pointed out that the application herein had been filed five (5) months after Kamau J delivered her Ruling without any justification as to the inordinate delay. He was emphatic that the application herein was an afterthought, frivolous, misconceived, incompetent and an abuse of the court process which only intended to unnecessarily delay the taxation process and, therefore, did not meet the threshold for the orders sought. 4. The Application was canvassed by way of written submissions. **Applicant’s Written Submissions** 1. The Advocate/Applicant filed its written submissions dated 19th May 2026. The Advocates submitted that the discretion of the court on an application of this kind had to be exercised upon the established principles which require such an applicant to satisfy the court both that intended appeal was arguable and that unless the order sought was granted, the appeal if successful would be rendered nugatory. It was their case that an arguable appeal was not one which must necessarily succeed but one which ought to be argued fully before the court as was held in the case of **Kenya Commercial Bank Limited vs Nicholas Ombija[2009] KECA 228 (KLR**). 2. They reiterated their averments in their supporting and further affidavit and noted that there had been no delay in bringing this application before the court and prejudice shall be suffered by the Respondent if the application is allowed and stay of proceedings granted. **Respondents written submissions** 1. The Respondent filed its written submissions dated 22nd May 2026. On its part, the Respondent submitted that it was trite that the power of the court to grant stay of proceedings or execution of a decree pending appeal was discretionary, however, the discretion should be exercised judicially as rendered in the case of **Butt Vs Rent Restriction Tribunal [1979] KECA 22 (KLR).** 2. It argued that the test for stay of proceedings was very high and stringent and the power to grant the same ought to be emphasised sparingly and only in exception circumstances as was held in the cases of **Kenya Wildlife Service Vs James Mutembei [2019] eKLR** and **Transpares Kenya Limited vs Kibiego & Another (Suing as the Legal Representatives of the Estate of Julius Kipkering) Civil Appeal E192 of 2024) [2025 KEHC 44636 (KLR**). 3. It pointed out that the Advocates. Applicants had failed to demonstrate the substantial loss they would suffer should the matter proceed for taxation, an arguable appeal with high chances of success, that they were ready to offer security and that the application was brought without inordinate delay. **Analysis and Determination** 1. A Perusal of the record indicates that, on 18th December 2025, the Learned Judge, Kamau J, dismissed the Applicants’ application dated 16th December 2021 and awarded costs to the Respondents. It was the said costs which marked the bone of contention herein as the Applicants were apprehensive that the same would be taxed and the Respondent would proceed to execute against them rendering their intended appeal nugatory. 2. The present application was brought under Order 42 Rule 6 of the Civil Procedure Rules, 2010 which empowers a court to stay execution of its own orders or an appeal court to stay orders from the court whose decision was being appealed from. The principles upon which the court may stay the execution of orders appealed from are well settled. **Order 42 Rule 6 of the Civil Procedure Rules** stipulates: - ***“No appeal or second appeal shall operate as a stay of execution or proceedings 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 orders set aside.*** ***No order for stay of execution shall be made under sub rule 1 unless: -*** ***a. The Court is satisfied that substantial loss may result to the 1st 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 of such decree or order as may ultimately be binding on him has been given by the Applicant.*** 1. Therefore, under Order 42 Rule 6(2) of the Civil Procedure Rules, an Applicant should satisfy the court that: - 2. Substantial loss may result to him unless the order is made; 3. That the application has been made without unreasonable delay; 4. The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him. 5. These principles were enunciated in **Butt Vs Rent Restriction Tribunal [1979]** **KECA 22 (KLR)** where the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that: - 6. ***The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.*** 7. ***Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.*** 8. ***Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.*** 9. ***Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse.*** 10. In the case of **RWW Vs EKW [2019] eKLR**, the court, while addressing its mind to the purpose of a stay of execution order pending appeal stated as follows: - *The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.* *Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent. In that regard what is at stake in this cause is that if the stay herein is not granted the Respondent would be at liberty to sell the immovable property and the proceeds thereof distributed or distribute the property 50:50.* 1. This Court notes that unlike stay of execution, stay of proceedings is granted sparingly because it effectively suspends a litigant's right to continue with proceedings that are properly before the Court.The Court must therefore exercise caution and balance the competing rights of the parties. Ringera, J. (as he then was) in **Re Global Tours & Travel Ltd HCWC No. 43 of 2000** held that: - *“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of case, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.”* 1. The above considerations by Ringera, J. are not exhaustive. Nonetheless, they provide a sufficient starting point to what may inform the Court’s discretion in such an application. To further buttress the above position, an excerpt from **Halsbury’s Laws of England, 4 th Edition Vol. 37 page 330 and 332**, is quite relevant. It states that: - *“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 proceeding 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 application for a stay on this ground must show not 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.”* 1. From the above provisions, the first consideration is whether the intended appeal is arguable. This Court has carefully perused the draft Memorandum of Appeal annexed to the Further Affidavit. Without delving into the merits of the intended appeal, it is evident that the Applicant seeks to challenge the legal basis upon which the Court declined to adopt the Certificate of Costs as a judgment of the Court and refused the prayer for interest under Rule 7 of the Advocates Remuneration Order. 2. Whether those grounds shall ultimately succeed is a matter reserved for the Court of Appeal. At this stage, it is sufficient for the Applicant to demonstrate that the appeal is not frivolous. This Court is satisfied that the intended appeal raises bona fide questions of law deserving consideration by the appellate court. 3. The next issue is whether the intended appeal would be rendered nugatory if stay is not granted. The Respondent argues that taxation merely quantifies costs and therefore no prejudice can arise. However, the Court notes that the costs sought to be taxed arise directly from the Ruling that is the subject of the intended appeal. If taxation proceeds and culminates in issuance of a Certificate of Costs, the Respondent would become entitled to commence execution proceedings against the Applicant. Such execution would introduce further proceedings and consequences that may complicate or undermine the effectiveness of the intended appeal. The Court is persuaded that preservation of the status quo pending determination of the appeal is necessary to safeguard the efficacy of the appellate process. 4. The right of appeal is a substantive right which should not be rendered illusory by events that may overtake the appeal before it is heard and determined. The Court has also considered the issue of delay. While it is true that the impugned Ruling was delivered on 18th December 2025 and the present Application was filed on 27th April 2026, the Court notes that the Application was precipitated by the filing of the Bill of Costs and the imminent taxation scheduled for 29th April 2026. The Applicant moved the Court immediately upon learning that taxation proceedings were imminent. In the circumstances, the Court does not find the delay to be so inordinate or inexcusable as to disentitle the Applicant to relief. 5. The Respondent further argued that no security has been offered. The Court notes that the present Application primarily seeks stay of taxation proceedings rather than stay of execution of a monetary decree. Consequently, the requirement for security under Order 42 Rule 6(2)(b) is not applicable in the strict manner contemplated in ordinary stay of execution applications. 6. Ultimately, the Court must balance the competing interests of the parties. The prejudice likely to be suffered by the Respondent if stay is granted is limited to a temporary delay in taxation. On the other hand, refusal of stay may expose the Applicant to execution proceedings before the appellate court has had an opportunity to determine the intended appeal. The balance of justice therefore tilts in favour of preserving the status quo pending determination of the intended appeal. 7. This Court is satisfied that sufficient cause has been demonstrated to warrant the exercise of its discretion in favour of the Applicant. In the premises, the Notice of Motion dated 27th April 2026 is meritorious. Accordingly, the Court makes the following orders: - 8. *That an order be and is hereby issued staying all taxation proceedings arising from the Respondent's Bill of Costs dated 28th January 2026 pending the hearing and determination of the Applicant's intended appeal before the Court of Appeal.* 9. *That an order be and is hereby issued staying any execution proceedings arising from the costs awarded in the Ruling delivered on 18th December 2025 pending the hearing and determination of the intended appeal.* 10. *That the Applicant shall take all necessary steps to institute and prosecute the intended appeal expeditiously and, in any event, shall file the Record of Appeal within sixty (30) days from the date hereof or within such further time as may be granted by the Court of Appeal.* 11. *That the Applicant/Advocate shall deposit the taxed amount of costs into a joint interest-earning account in the names of Respondent’s Advocate and their own within thirty (30) days of this Ruling.* 12. *That in default of compliance with Order (c) and (d) above, the stay orders granted herein shall automatically lapse unless otherwise extended by the Court.* 13. *That the Costs of this Application shall abide the outcome of the intended appeal.* 14. Orders accordingly. **DATED AND DELIVERED AT VIHIGA VIA CTS THIS 9TH DAY OF JUNE 2026** **…………………………………..** **R. NYAKUNDI** **JUDGE**