https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6892

Vshydro (Kenya) Ltd v KTDA Power Company Ltd & another (Commercial Case E054 of 2023) [2026] KEHC 6892 (KLR) (Commercial and Tax) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 6892 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case E054 of 2023 BK Njoroge, J May 14, 2026 Between Vshydro (Kenya) Ltd Applicant and Ktda Power Company Ltd 1st Respondent Settet Power Generation Company Ltd 2nd Respondent Ruling 1.This is a Ruling arising out of an application by the Plaintiff/Applicant. It seeks primarily to stay the taxation of costs in the suit as well as stay the execution of the orders of Honourable Lady Justice Njoki Mwangi issued on 26th May, 2023. Background Facts 2.The Applicant filed the Application dated 6th May, 2025 seeking the following orders;1.Spent.2.Spent.3.That pending the hearing and determination of the Plaintiff/Applicant's suit herein, this Honourable Court be pleased to Order:a)A stay of execution of Ruling of Hon. Lady Justice Njoki Mwangi, delivered Nairobi on the 26/5/2023, in Nrb HCCOMM Civil Suit No. E54 of 2023. between the parties hereto.b)An Order of stay the Taxation of the Defendants/Respondents' Party to Party Bill of Costs, dated 22nd June, 2023, in Nrb HCCOMM Civil Suit No. E54 of 2023, between the parties hereto.4.That this Honourable Court be pleased to grant any other Orders that it deems fit and just.5.That Costs of this application be provided for. 3.The Application was supported by the Affidavit of Prabodha Sanasakera. He stated that the Plaintiff/Applicant instituted this suit against the Defendants/Respondents vide a Plaint dated 16th February 2023. It also simultaneously filed a Notice of Motion seeking various stay orders against the Defendants/Respondents. Upon hearing the application, the Court delivered a ruling on 26th May 2023 dismissing the same with costs to the Respondents. Thereafter, the Respondent filed its Party-to-Party Bill of Costs dated 22nd June 2023. The main suit, however, remains pending for hearing and determination. That no special reasons have been advanced or recorded by the Court to warrant taxation of the costs before the conclusion of the substantive suit. 4.The Bill of Costs was served upon its former advocates, who failed to notify it of the same and later sought leave to cease acting. It was only upon the appointment of new advocates that the Applicant discovered that the Bill of Costs had been filed and submissions tendered without its participation. The Respondent has since commenced execution processes. That unless the orders sought are granted, the Bill may be taxed and execution undertaken to the Applicant’s detriment despite the suit being unheard. The present application has been brought without undue delay and that no prejudice shall be occasioned to the Respondent if the prayers sought are allowed. 5.In response, the Respondent filed the Grounds of Opposition dated 1st July 2025 on the following grounds;a.The application is fatally defective and incompetent, the same having been filed by a law firm that is not properly on record for the Plaintiff.b.The application is frivolous, vexatious and an abuse of the court process as the taxation arises from the striking out of the Plaintiff’s Notice of Motion Application dated 16th February 2023.c.The Plaintiff has never appealed against the ruling of Hon. Lady Justice Njoki Mwangi delivered on 26th May 2025 hence nothing stops the Taxing Officer from taxing the Bill of Costs dated 22nd June 2023.d.The pendency of the main suit, if at all, does not stop the Taxing Officer from assessing costs awarded in an application.e.The application is therefore bad in law, and ought to be struck out with costs to the Respondents. Issues for determination 6.The Court has carefully considered the Application, Grounds of Opposition, the submissions and oral highlights by Counsel for the parties. The Court frames the following issues for determination;a.Whether the Court should stay the execution of the Ruling, delivered on 26th May 2023.b.Whether the Court should stay the Taxation of the Defendants/Respondents' Party to Party Bill of Costs, dated 22nd June, 2023. Analysis 7.The background of this Application is that Hon. Lady Justice Njoki Mwangi, on 26th May 2023, delivered a Ruling striking out the Applicant's Notice of Motion dated 16th February 2023, citing that the application was filed prematurely. 8.The Court notes that the Plaintiff filed a Plaint dated 16th February, 2023 seeking the following reliefs;a.A Permanent injunction restraining the Defendant from assigning the EPC Contract of Kipsonoi Small Hydropower Project (2.5MW) and EPC Contract of Chemosit Smali Hydropower Project (2.5MW), dated 13th September 2018 and 17th September 2018, to any other Contractor or third parties pending the reference to arbitration and the hearing of the arbitral proceedings.b.A Permanent injunction restraining the Defendant either by itself, its servants or agents from dealing, releasing or taking possession the Plaintiff's materials on site, including in respect of the EPC Contract of Kipsonoi Small Hydropower Project (2.5MW) and EPC Contract of Chemosit Small Hydropower Project (2.5MW), pending the reference to arbitration and the hearing of the arbitral proceedings.c.An Order directing that the materials that are currently wasting away on the site be kept by the Plaintiff in safe storage and custody.d.d) Costs of this suit.e.e) Any further or other order as this Honourable Court may deem fit. 9.The Plaintiff had filed an application before the Court seeking interim measures of protection pending arbitration. This was by way of an application dated 16th February, 2023. In this Court’s Ruling delivered on 26th May, 2023Hon. Lady Justice Njoki Mwangi, held as follows;“ 53.Consequently, the application dated 16th February, 2023 is hereby struck out with costs to the defendants. It is so ordered.” 10.As can be seen from the above all the Court did was to strike out a Motion that had been presented before it. It also awarded the costs of the unsuccessful application to the Defendants/Respondents. This was an interlocutory application. The main suit is still pending. 11.The Applicant complains that the Court did not direct that those costs awarded had to be paid immediately, for that reason he seeks to stay the Ruling. 12.The Respondents on the other hand submit that they are perfectly entitled to have those costs assessed and ascertained. 13.On this issue the Court turns to the provisions of Order 51 Rule 11 of the Civil Procedure Rules which states as follows;11.Costs and other relief [Order 51, rule 11.](1)It shall not be necessary in an originating summons, application or other process to ask for costs, or for general or other relief, which may be granted by the court as it thinks just.(2)Unless the court otherwise orders for special reasons to be recorded, costs awarded upon an originating summons, applications or other process shall be taxed only at the conclusion of the suit. 14.On the issue of the Stay of the Ruling delivered on 26th May, 2023, the Court notes that this is a negative order. It simply struck out an application which to date remains struck out. There is nothing to be stayed stay. This is to be contrasted from a positive order which directs a party to do, act or pay something. Such an order can be stayed. 15.The Applicant’s application succeeds to the extent that the Taxation of the Bill of Costs is stayed. Such is an order or consequence that flows from the order that struck out the application. The Court has the jurisdiction to stay such a positive act of taxation. Such order should be granted on the basis of the circumstances of the case, noting that Taxation of costs is a magisterial function that flows from a decision of the Court. The Court ought to grant such orders sparingly and in the clearest of cases, noting that this is fettering the natural course of justice. 16.In the case of Deposit Protection Fund versus Rosaline Njeri Macharia [2006] eKLR, the Court while dealing with an application of stay of taxation proceedings, observed as follows:“Going back to the 2nd defendant’s arguments, I note them as saying that if the court did not grant an order for stay of the proceedings, the applicant would not suffer substantial loss, on account of the taxation of the defendants’ Bills of Costs. When faced with those submissions, the applicant did not tell the court how the taxation of the defendants’ Bill of Costs would cause them substantial loss. To my mind, the taxation of a Bill of Costs cannot occasion any loss to the person against whom it is taxed. Therefore, the issue of taxation causing substantial loss does not even arise. The only effect of taxing a Bill of Costs is the ascertainment of the quantum of costs payable by one person to another. Thereafter, the party whose costs had been ascertained could take out execution proceedings. The applicant did not, in my considered view, make out a case for stay of proceedings, and in particular a stay of the taxation of the defendants’ Bills of Costs. Furthermore, if the learned taxing officer were to proceed to tax the defendants’ Bills of Costs, the sums would be ascertained, and that would be the foundation upon which this court could base the size of the security which the applicant would need to raise, if the court did order that there be a stay of execution.” 17.The circumstances of this case are clear that the successful Defendants/Respondents cannot tax their Bill of Costs. This is because the Court while delivering the Ruling dated 26th May, 2023 did not direct that it be taxed before the conclusion of the case. Leave to tax the Bill of Costs before the conclusion of this case was also not sought. As with all the other matters pending before the Court, this particular one has to wait out as parties lunge, feint, riposte and parry in Court. 18.As to costs, the same lie at the discretion of this Court. The same follow the event. They are awarded to the successful Applicant. Determination 19.The Plaintiff/Applicant’s application by way of a Notice of Notion dated 6th May, 2025 is partially allowed in the following terms;a.That the Court issues an order of stay of the Taxation of the Defendants/Respondents' Party to Party Bill of Costs, dated 22nd June, 2023, in Nrb HCCOMM Civil Suit No. E54 of 2023, between the parties hereto, pending the hearing and final determination of this suit and or further orders of this Court.b.The costs of the application are awarded to the Plaintiff/Applicant. 20.It is so ordered. DATED, SIGNED AND DELIVERED AT MILIMANI THIS 14TH DAY OF MAY, 2026.NJOROGE BENJAMIN K.JUDGEIn the presence of;Mr. Mbithi for the Plaintiff/Applicant.Mr. Odoyo for the Defendants/Respondents.Ms. Susan Nzioka - Court Assistant.