https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5034

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MIGORI** **ELCC NO. 289 OF 2017** **GEORGE AWUOR OKULLO ........................ PLAINTIFF/APPLICANT** **-VERSUS-** **CHINA WU YI (K) CO. LTD ...................DEFENDANT/RESPONDENT** **AND** **JACK BARAZA BARAZA ........................................1ST THIRD PARTY** **BENARD ALIWA ..................................................2ND THIRD PARTY** **RULING** (On whether the Reference dated 8th August 2025 has been overtaken by events) **Background** 1. This ruling determines a single, narrow question which, upon the parties contending over a demand for payment of part of taxed costs, the Court framed and directed them to address. The issue proceeded by way of written submissions on 25th May 2026. The issue was whether the Plaintiff's Reference dated 8th August 2025, which raised in essence objection to the taxation of his Bill of Costs, had been overtaken by events in light of a Consent dated 4th December 2025. The consent was subsequently adopted as an order of the Court of Appeal. 2. The brief chronology is as follows. By a judgment of this Court delivered on 4th December 2019, the Plaintiff was, among other reliefs, awarded the costs of this suit. Pursuant to that award, the Plaintiff lodged for taxation his Party and Party Bill of Costs. It was dated 22nd May 2020. The taxing maser delivered a ruling on 30th July 2025. He taxed the Bill at a certain sum. The Plaintiff, dissatisfied with the quantum found due on a number of items, gave Notice of Objection to the Taxing Officer. He sought the reasons for the decision on a number of disputed items. The taxing master did not supply any further or separate written reasons apart from the ones he had given at the time of delivery of his decision. 3. On 8th August 2025, the Plaintiff lodged the Reference now under consideration. He did it by way of Chamber Summons under **Rule 11(1)** and **(2)** of the **Advocates (Remuneration) Order** and **Sections 1A** and **3A** of the **Civil Procedure Act.** It was supported by his own affidavit in which he deposed on some taxed items he challenged. Specifically, he questioned the taxing officer's award on some twenty items in the Bill of Costs, including items going to instructions, Getting-Up fees, and transport charges said to have been reasonably incurred. He asked that they be set aside or varied, and that the items be remitted to a different taxing officer for re-taxation, or in the alternative that this Court itself retaxes them. 4. Independently of the Reference, the Defendant had pending before the Court of Appeal in Kisumu an appeal against the substantive judgment of this Court. Together with applications for stay of execution filed in this Court, one dated 27th November 2025, he filed in the Court of Appeal in Kisumu **Civil Appeal No. E170 of 2020** another one dated 30th September 2025. He also filed an application dated 26th November 2025. 5. It appears the parties explored a settlement on one or two issues. On **4th December 2025** they recorded a Consent in respect of the applications before courts. When the appeal came up before the Court of Appeal, learned counsel drew the Court's attention to the Consent. The Court adopted it on **16th February 2026,** as drawn**.** 6. The material terms of the Consent, so far as relevant, are these. The preamble recites the three pending applications for stay of execution as identified above. It then proceeded as follows: ***"the parties acknowledge that the aforementioned pending applications for stay of execution of judgment are fully compromised by this consent."*** 1. Clause A provides further that: ***"the appellants pending applications for stay of execution referenced above are fully and finally compromised and shall be marked as withdrawn upon the formal adoption of this consent order by the court."*** 1. Clause E requires the Appellant to, "***pay the Party and Party Costs assessed at Kshs. 533,639.00 within 7 days of the signing of this Consent."*** 1. Clause G repeats, in near-identical terms to the Preamble and Clause A, to the effect that the three named applications *"be and are hereby marked as compromised."* Clause H provides that default in compliance with Clauses C, D, E and F, the stay of execution to lapse automatically. Clause I provides that if the appeal succeeds, the Respondent (i.e. the Plaintiff herein) shall reimburse all amounts paid under the Consent, including costs. 2. It is against this backdrop that the Defendant now contends that the Reference has been overtaken by events and ought to be dismissed while the Plaintiff maintains that it remains alive and falls to be determined on its merits. **The Plaintiff's Case** 1. The Plaintiff's case is that the Consent, properly construed, did not compromise the Reference at all, and that the question is not whether time under Rule 11 of the Advocates (Remuneration) Order was suspended, but whether the subject matter of the Reference remained alive after the Consent. 2. The Plaintiff submitted that a consent, being in essence a contract between the parties, must be construed as a whole, with each clause read in harmony with the others. He relied on **Wasike v Wamboko (supra)** and **Halsbury's Laws of England (4th Edn) Vol 12 para 1469**. He relied further on the objective, four-corners approach to contractual construction summarised in **Paragon Electronics Ltd v Fatma Moses [2022] eKLR**, which in turn draws on **National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] eKLR for** the proposition that a court cannot rewrite a contract between the parties. Further he submitted on the Parol Evidence Rule as applied in **Fidelity Commercial Bank Limited v Kenya Garage Vehicle Industries Limited [2017] eKLR** (as cited with approval in **Safari Eight Two Thousand and Two Co. Ltd v Evanson Nyasani t/a Nyasani E.N. & Co. Advocates, HC Civil Appeal No. 16 of 2019.** 3. On that basis, the Plaintiff draws attention to the fact that the preamble and Clauses A and G of the Consent all identify, with specificity, three named applications for stay of execution. He argues that it applies to only those three. Further, nowhere does the Consent make even in passing a reference to the Reference dated 8th August 2025, notwithstanding that it was pendency and within the knowledge of both parties. The Plaintiff submitted that had the parties intended to compromise the Reference, nothing would have been easier than to say so expressly, as they did for the three stay applications. He invoked the maxim “***expressio unius est exclusio alterius***” to argue that the express mention of the three applications operates to exclude any application, including the Reference, not so mentioned. 4. As to Clause E, the Plaintiff submitted that the obligation to pay the assessed costs was not a compromise of the correctness of the taxation but a condition attached to the grant of stay. That such is consistent with the purpose of security under Order 42 of the Civil Procedure Rules, which is to guarantee the due performance of a decree or order rather than to punish a party or extinguish a separate right of challenge. He relied on **Arun C. Sharma v Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 Others [2014] eKLR**. He argued that settlement of the costs in compliance with the stay conditions did not amount to a waiver of his right to prosecute the Reference, since the Reference is directed at the quantum of costs, a question distinct from the Appellant's obligation, as a condition of stay, to pay over the sum as currently assessed pending the outcome of that very challenge. 5. On the question whether a valid Reference exists at all, the Plaintiff submitted that the ruling on taxation of 30th July 2025 was itself a reasoned ruling; that his notice of objection dated 30th July 2025 and filed 31st July 2025 was within the fourteen-day period prescribed by Rule 11(1) of the Advocates (Remuneration) Order; and that, applying **Kobil Petroleum Limited v Almost Magic Merchants Limited, Nairobi HCCC No. 1970** of **2000 (unreported)** and **Postal Corporation of Kenya v Donald Kipkorir & 3 Others** **[2005] KEHC 2337 (KLR)**, a reference may properly be lodged on the basis of a reasoned ruling without waiting for the taxing officer to supply further, separate reasons where none of substance remain to be given. On this basis, the Plaintiff maintains that the Reference was validly and timeously filed on 8th August 2025, and is not liable to be struck out as premature. **The Defendant's Case** 1. The Defendant's case, as set out in its written submissions, is that whatever protection the Plaintiff may originally have enjoyed by virtue of having sought reasons for the taxation, and the Defendant does not dispute that, as a general proposition, time does not run against a Reference where reasons have been sought but not supplied, was superseded once the parties entered into the Consent of 16th February 2026 and the Court of Appeal adopted it. 2. The Defendant emphasised that Clause E of the consent is unqualified since the parties did not provide that payment of the assessed party and party costs would abide the outcome of the Reference, nor did they reserve the Plaintiff's right to continue prosecuting the objection, nor state that payment was without prejudice to the pending Reference. His argument was that once the Consent was adopted as an order of the Court of Appeal, the obligation to pay **Kshs. 533,639.00** ceased to be a matter of taxation simpliciter and became a term of a court order having contractual effect. He relied on **Wasike v Wamboko [1985] KECA 149 (KLR).** 3. The Defendant submitted further that because payment of the assessed costs was one of the express conditions for the stay, such that a default under Clause H would cause the stay to lapse automatically, the costs clause was woven into the very relief granted by the Court of Appeal, and cannot now be treated as separable or provisional. Relying on **Ratemo Oira & Company Advocates v Magereza Savings & Credit Co-operative Society Ltd** **[2023] KEHC 23492 (KLR),** the Defendant argued that a party cannot accept payment of taxed costs pursuant to a settlement and thereafter seek to reopen the same taxation, as that would amount to approbating and reprobating. 4. Finally, the Defendant pointed to the Plaintiff's inactivity after seeking reasons on 30th July 2025, no follow-up, no application to compel the Taxing Officer, as indolence which disentitles the Plaintiff to the indulgence of the Court. He invoked the equitable maxim that equity aids the vigilant and not the indolent. This was amplified in **Ibrahim Mungara Mwangi v Francis Ndegwa Mwangi [2014] eKLR**. **Issues for Determination** 1. I have considered the contention herein, the law, and the submissions by the parties. Arising from the foregoing, the following issue fall for determination: 2. Whether the Reference is validly and timeously before the Court. 3. Also, I have carefully considered the terms of the consent dated 16th February 2026 recorded by the parties. It refers to three applications of stay of execution which would be withdrawn upon its adoption. It does not refer to the Reference that was pending at the time as being withdrawn also or settled. However, Clause E which refers to the Reference expressly obligates the Appellant to pay the party and party costs assessed at **Kshs. 533,639.00** within seven days of the execution of the consent. Its relevant phrase needs to be reproduced here as it plays a critical basis of resolving the contention herein. It states, “***pay the Party and Party Costs assessed at Kshs. 533,639.00****.*” 4. It is clear that the Clause referred to above addressed an aspect of the issues between the parties: party and party costs. It, and the consent therefore, does not at any point purport to refer to security for the due performance of the decree. Actually, the consent is clear that the applications that were aimed at addressing that aspect, even as submitted by the applicant that the sum agreed upon was in regard to the requirement for security for due performance, were withdrawn. The withdrawal Clause of the consent does not mention security for due performance. As rightly argued by the applicant basing it on the Latin phrase, “***expressio unius est exclusio alterius***” to underscore the that the express mention of the three applications operates to exclude any application including the Reference herein, by the same token the express mention of “party and party costs” expressly excludes security for due performance of the decree of this Court. The language employed therein is precise and admits of no ambiguity. 5. It is then important to underscore the meaning of party and party costs. The phrase traces its origin to Paragraph 52 of the Advocates Remuneration Order which gives life to Section 27 of the Civil Procedure Act which provides on awarding of costs. The Paragraph provides that, “***The costs awarded by the Court on any matter or application shall be taxed and paid as between party and party unless the Court in its order shall have otherwise directed***.” Thus, party and party costs are the legal expenses that a losing party in a matter before a court or tribunal is obligated to pay upon the determination that he has lost the cause and should pay costs. 6. As stated above, at paragraph 9, Clause G provided for compromising the three applications while Clause H was a default one and Clause I provided for a fallback if the appeal succeeded. In case it succeeds, the Plaintiff shall reimburse all amounts paid under the Consent, including costs. The latter (costs payable upon success of the appeal), in my view, are the costs of the appeal to be reimbursed if the Court of Appeal orders so upon that determination. That is why the consent did not provide for a refund of a further “taxed” or “reviewed” party and party costs but the sum “assessed” by the parties and paid in seven days. 7. This now turns me to the Reference whose life or continued urging is the contention herein, and the consent alleged to have ended that life. As stated above in Paragraphs 2 and 3, this Court entered judgment for the Plaintiff against the Defendant on 4th December 2019. It granted him, among others, the relief costs of this suit. As the winner of the litigation he (Plaintiff) lodged his Party and Party Bill of Costs dated 22nd May 2020. This was subsequently taxed on 30th July 2025 in the sum of KShs 533,639.00. The Plaintiff being dissatisfied with the Ruling of the Taxing Master filed the Reference in issue. 8. In essence, before the consent that was finally recorded by the Court of Appeal, the parties either failed to agree on the costs payable or did not attempt any agreement on them. For that reason, the plaintiff filed a Bill of Party and Party costs which was subjected to taxation. Had the Plaintiff been satisfied with the taxation there would be no Reference filed. 9. I now interpret the facts as presented by the parties herein. I do so by way of sort of a pictorial or situational presentation of the actions of the parties. It is that during the pendency of the appeal and the three applications for execution, the parties, alive to the fact that costs had been taxed in the sum of KShs. KShs 533,639.00 and execution might commence, set to discuss on the way forward. They did and finally reached an agreement which they reduced into writing. One of the agreed limbs was that the appeal could proceed without execution of the decree, but on condition that a certain sum of money is paid to the Plaintiff. This sum would be paid conditional of the success or otherwise of the appeal. If the appeal failed, well and good: the Respondent retains the money. If it does not, then too bad: the Respondent has to refund the money. 10. The remaining question is, what sum of money (was to) would be paid? The parties could not settle on any except getting one upon a relook at the taxed party and party Bill of Costs. They decided voluntarily not to vary the sum from KShs 533,639.00. The outstanding question is, is it the Court (taxing master) who imposed on them the figure? No. Rather, it was the parties who voluntarily agreed to the taxed costs to be now the sum they assessed as the “party and party costs” in that sum and further agreed that it be paid in seven (7) days, in default of which stay of execution would lapse. Did the agreement provide that the sum party and party costs was “assessed” in part? It did not. Further, did the consent provide that another sum or figure be ascertained by another court or officer apart from the now “assessed” costs? It did not. This then still returns me to the Latin phrase, “***expressio unius est exclusio alterius***” to make a finding that since a further challenge or reevaluation of the party and party costs by way of a continuation of the Reference was expressly excluded, it cannot be included now. 11. A plain and grammatical reading of Clause I is that should the appeal ultimately succeed, the Respondent shall reimburse all sums paid pursuant to the consent, including costs. In my humble view, the parties were bound by their consent, as held in **Wasike v Wamboko** (*supra*). 12. The parties therefore consciously and unequivocally agreed to adopt the concluded taxation on costs as the basis of determining the amount payable pending the determination of the appeal. They agreed that sum Kshs 533,639.00 was the amount assessed and payable, while providing an express mechanism for restitution in the event of a successful appeal. Significantly, as noted above, the consent neither reserved nor preserved the Applicant's right to prosecute the pending reference challenging the taxation, nor did it state that payment of the assessed costs was without prejudice to the objections raised. In the absence of such reservation, the only reasonable construction of the consent is that the parties compromised the issue of the taxed costs by consent. 13. It is trite law that a consent order has a contractual effect and is binding upon the parties unless and until it is set aside on grounds that would justify the setting aside of a contract, such as fraud, mistake, misrepresentation, collusion or any other vitiating factor. In **Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266**, the Court held that a consent judgment can only be interfered with on grounds that would justify the setting aside of a contract. The same principle was emphatically restated by the Court of Appeal in **Flora N. Wasike** (*supra*) case, where it was held that a consent order has contractual effect and remains binding unless impeached on recognized legal grounds. These decisions have become the *locus classicus* on the legal effect of consent orders in Kenya. 14. In the present case, the Applicant seeks to pursue a Reference challenging the very taxation which the parties subsequently accepted as the “assessed” party and party costs and incorporated it into a binding consent. The Applicants have not demonstrated fraud or mistake or vitiating factors in terms of the making of the consent. To permit the Applicant to continue prosecuting the Reference while the consent remains in force would not only undermine the sanctity of consent orders but would also amount to permitting the Court to rewrite the parties' agreement. If indeed the Applicant considers that the consent ought not to bind it, the proper course is first to move the appropriate court to have the consent set aside on the recognized legal grounds. Until that is done, the consent remains valid and enforceable. Thus, there is no live controversy regarding the taxation for this Court to determine. The Reference is therefore rendered spent, having been overtaken by events, which events are the entry into a consent thereon, and settled. This in my humble view settles the Reference. 15. Each party to bear the costs. 16. Orders accordingly. **Ruling Dated Signed and Delivered virtually via the Teams** **Platform this 20th day of July 2026**. **HON. DR. IUR NYAGAKA,** **JUDGE** **In the presence of,** Ouma Njoga Advocate for Applicant Ms. Wainaina Advocate for Respondent