https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9471

Purshottambhai t/a Komal Manufactures Limited v Abdul t/a Lion King Chemicals (Commercial Miscellaneous Application 005 of 2023) [2026] KEHC 9471 (KLR) (Commercial and Tax) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9471 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Miscellaneous Application 005 of 2023 MO Ado, J June 25, 2026 Between Patel Arvindbhai Purshottambhai t/a Komal Manufactures Limited Applicant and Mrs. Tasmeen Abdul t/a Lion King Chemicals Respondent Ruling 1.For determination is the Applicant’s Ex-Parte Chamber Summons application dated 10th September 2025, which seeks, inter alia, a temporary stay of execution of the orders and ruling of this Court (Hon. Justice Ado Moses) delivered on 3rd July 2025, pending the hearing and determination of the Applicant’s substantive application dated 4th August 2025 to review or set aside the orders in the said ruling of 3rd July 2025, and to contest the taxed Bill of Costs under Section 51(2) of the Advocates Act (Cap 16). 2.In support of the application, the Applicant, through his Counsel, T.O. Odhiambo & Company Advocates, filed submissions dated 14th November 2025. 3.The application is opposed by the Respondent through a Replying Affidavit sworn by Charles M. Ongoto, on 19th September 2025, alongside written submissions dated 23rd February 2026 filed on the Respondent's behalf by C.M. Ongoto & Company Advocates. Analysis and Determination 4.I have considered the application, the affidavits filed, and the parties' respective submissions. In my view, the principal issue for determination is whether the Applicant has established sufficient grounds to warrant the grant of a stay of execution pending the determination of the pending application dated 4 August 2025. 5.There is no dispute that judgment was entered on 3 July 2025 pursuant to section 51(2) of the Advocates Act following taxation of the Respondent's Advocate–Client Bill of Costs in the sum of Kshs. 1,127,662.99. There is equally no dispute that execution proceedings were thereafter commenced and that the Applicant's goods were proclaimed by auctioneers. 6.There is no further dispute that the present application seeks a stay of execution pending the determination of the Applicant’s application dated 4 August 2025, whose principal prayer is an order for review of this Court's ruling delivered on 3 July 2025, particularly on the question of retainer and the existence of an advocate–client relationship. 7.The issue of retainer is not a peripheral one. It is the foundation upon which an advocate's entitlement to fees and the jurisdiction of a taxing officer to tax an Advocate–Client Bill of Costs rests – see the Court of Appeal decision in Omulele & Tollo Advocates v Mount Holdings Limited [2016] KECA 523 (KLR). If it is ultimately established that no retainer existed, then serious questions would arise regarding the propriety of the taxation proceedings and the consequential orders founded thereon. 8.Although the Respondent argues that the issue was conclusively determined in the ruling of 3 July 2025, the Court is alive to the fact that the Applicant has already invoked the Court's review jurisdiction through the application dated 4 August 2025, which remains pending. 9.In those circumstances, it would be contrary to the dictates of substantive justice and the right to a fair hearing under Article 50(1) of the Constitution to permit execution to proceed before the Applicant is afforded an opportunity to fully ventilate its case in the pending review application. 10.Granting an order of stay in these circumstances does not amount to determining the merits of the review application; rather, it preserves the substratum of the dispute pending the Court's determination of the issues raised therein. 11.I am also satisfied that the requirements under Order 42 Rule 6 of the Civil Procedure Rules have substantially been met. Execution has already commenced, and the Applicant's goods have been proclaimed. Further, pursuant to the interim orders granted by the Court on 12 September 2025, the Applicant deposited the entire decretal amount of Kshs. 1,127,663.00 in Court. The Respondent's interests are therefore adequately secured, and no prejudice will be occasioned by preserving the status quo. 12.In the circumstances, the balance of convenience tilts in favour of granting the Applicant an opportunity to prosecute the pending application dated 4 August 2025 for review without the imminent threat of execution. 13.Accordingly, the Chamber Summons dated 10 September 2025 is allowed, and the Court makes the following orders:i.There shall be a stay of execution of the orders issued on 3 July 2025 pending the hearing and determination of the Applicant's application dated 4 August 2025.ii.The sum of Kshs. 1,127,663.00 already deposited in Court shall remain so deposited as security pending further orders of the Court.iii.The application dated 4 August 2025 shall be fixed for hearing on a priority basis.iv.Costs of the Chamber Summons shall abide the outcome of the application dated 4 August 2025. 14.It is so ordered. DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 25TH DAY OF JUNE 2026HON. MR. JUSTICE MOSES ADOJUDGE OF THE HIGH COURTIn the Presence of:Moses C/A……………for the Applicant……………for the Respondent