https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3626

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT NYERI** **ELCA CASE NO. 48 OF 2021** **ZACHARY MAINA MUNYUA…………………………………APPELLANT** **VERSUS** **NANCY WAMUYU MUNYUA…………………...……...1ST RESPONDENT** **TERESIA WAKANYI MUGO…………………...….…...2ND RESPONDENT** **BEATRICE WAIRIMU MUNYUA……………….…….3RD RESPONDENT** **CATHERINE WANJIRU MUNYUA…………………...4TH RESPONDENT** **DAMARIS WANJIKU MUNYUA………………………5TH RESPONDENT** **RULING** 1. There are two applications on record scheduled for determination, both dated January 7, 2026. One is by the 1st Respondent and is not supported by an affidavit, seeking the following orders: 2. **The 1st respondent's costs are to be taxed as per the annexed bill.** 3. **That the appellant pays the costs of this application.** 4. In response to this application, the 1st Respondent submitted Grounds of Opposition, opposing the 1st Respondent’s application on the following grounds: 5. **That the Application and the taxation of the respondent's bill of costs are mutually exclusive actions in that the approval of one pre-empts the operationalization of the other.** 6. **That the taxation can only be effected after the determination of the Applicant's Application dated 7th January 2026.** 7. **That the bill of costs was filed with the presumption that the Application was not approved, which was prejudicial.** 8. **That all the respondent's objections to the Application have been fully extinguished through the Supplementary Affidavit and the attached letter to her Advocate dated 13th November 2024** 9. **That the respondent would not suffer any prejudice by waiting for the conclusion of the appeal, which is now in progress in the Court of Appeal, to file a comprehensive bill of costs if the appeal fails.** 10. The second application has been filed by the Appellant herein and seeks the following: 11. **Spent.** 12. **Spent** 13. **That the stay orders previously issued by the lower court in Karatina on June 15, 2022, remain in force until the applicants' appeal in the Court of Appeal at Nyeri is fully heard and determined.** 14. The Appellant's application is supported by his affidavit, in which he deposed that the judgment on his appeal was delivered on December 18, 2025, and that it was based on his void original memorandum of appeal rather than the amended memorandum of appeal. 15. The Appellant argued that this was in contravention of Article 50(4) of the Constitution of Kenya 2010, added that his appeal has a very high probability of success, and annexed a draft memorandum of appeal. 16. The Appellant highlighted that the lower court in Karatina issued a stay of execution on 15th June 2022 and that he fully complied with the conditions set out by the lower court in Karatina while granting the stay orders by paying a deposit of Kshs. 150,000/=, the receipt for which he annexed. 17. He argues that only extending the stay orders issued by the lower court in Karatina can deter the respondents from disrupting the *status quo* on the disputed land parcel. **The 1st Respondent’s replying affidavit** 1. Charles Murage Kamwenji, Counsel for the 1st Respondent, swore and filed an affidavit in response to the Appellant’s application, deposing that the prayers sought in the initial suit are not capable of being executed by the 1st Respondent and contending that the 1st Respondent can execute only the order for costs. 2. Because the costs in this matter have not been taxed, there is nothing to execute. Accordingly, the 1st Respondent contends that this application has not met the threshold for a stay pending appeal and that the applicant has neither filed an appeal nor offered the security required by law. 3. The 1st Respondent further contends that, because no appeal is pending, there is nothing to wait for, and that the attached memorandum of appeal, which has not, in any case, been filed, raises no triable issues. Accordingly, the 1st Respondent's view is that this application lacks merit and should be dismissed with costs to the 1st Respondent. **The Appellant’s supplementary affidavit** 1. The Appellant swore a supplementary affidavit on February 23, 2026, in which he deposed that the only matter scheduled for hearing is his application dated January 7, 2026. 2. He deposed that the Respondent’s Replying Affidavit was filed in haste, one month before the hearing date, and even before the procedural service of the application was effected, as an ambush, hence the many untruthful statements therein. 3. Contrary to paragraph 3, this Honorable Court has jurisdiction to hear and determine this application, grant the prayers under the existing terms, reduce them, or completely remove them if it deems it fit to do so. 4. In response to paragraph 8, the Appellant contends that the filing and service of the Notice of Appeal demonstrated the intention to appeal, noting that he filed and served the Record of Appeal on February 12, 2026, and paid the security of costs on the same day. 5. The Appellant argues that there is no correlation between the filing and taxation of the respondent's bill of costs and the filing of his appeal in the Court of Appeal. **Analysis and Determination** 1. Addressing the Appellant’s application first, the Appellant seeks an extension of the stay of execution orders previously issued by the lower court in Karatina on June 15, 2022, so that they remain in force until the Appellant’s appeal in the Court of Appeal at Nyeri. 2. Order 42, Rule 6 of the Civil Procedure Rules provides that: ***“No*** ***appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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 the application being made, to consider such application and to make such order thereon as may to it seems 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 order set aside.”*** 1. Based on the reading of the aforementioned provision, the act of filing an appeal or a second appeal, as in the present case, does not inherently constitute a stay of execution unless the Court from which the appeal is made or the Court to which the appeal is directed issues a stay order. The Magistrate’s Court at Karatina is neither of the two courts relevant to this appeal; therefore, this Court possesses the authority to issue a new stay order, distinct from and not an extension of the original trial court’s stay, should it find the appellant’s application to be substantiated. 2. The purpose of stay orders is to preserve the subject matter of the appeal so as not to render the appeal nugatory. In the renowned case of **Butt v Rent Restriction Tribunal [1979] eKLR**, the Court of Appeal emphasized the considerations for granting or refusing a stay of execution pending appeal. The court stated that the authority to grant or deny a stay of execution is discretionary and that such discretion should be exercised so as not to impede the appeal. Furthermore, the general principle in granting or denying a stay is that, absent an overwhelming obstacle, a stay ought to be granted to prevent the appeal from becoming nugatory if the appellate court reverses the lower court's decision. Additionally, a judge should not deny a stay solely because, in their opinion, a better remedy might become available to the applicant at a later stage of the proceedings. Lastly, when exercising discretion regarding the grant or refusal of a stay, the court will consider the particular circumstances of the case and its specific requirements. 3. The Applicant claims to be at risk of loss because the Respondent is threatening execution, but this court’s judgment dismissed the appeal solely for lack of *locus standi* and issued no further orders. This was the same determination the trial court at Karatina made when it dismissed the Appellant’s suit on November 12, 2021. Thus, the only matter pending is the execution of costs by the Respondents herein. 4. However, the Courts have held that the threat of execution alone does not constitute substantial loss, a requirement for the issuance of an order of stay, as observed by Gikonyo J in **James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR**: ***“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.*** ***The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail.”*** 1. In my opinion, based on the materials provided, the Appellant has not satisfied the criteria necessary for the issuance of stay orders. The application is accordingly dismissed. 2. The 1st Respondent has also filed an application dated January 7, 2026, seeking that her costs be taxed in accordance with the attached bill of costs. However, her application is not supported by an affidavit. 3. Order 51, Rule 1 of the Civil Procedure Rules provides that: ***“All applications to the court shall be by motion and shall be heard in open court unless the court directs the hearing to be conducted in chambers or unless the rules expressly provide.”*** 1. Courts have held that an application filed without a supporting affidavit is fundamentally defective, and neither Article 159 of the Constitution nor the oxygen principle can rectify this defect. 2. Kiage, JA, in the case of **Nicholas Kiptoo Arap Korir Salat v IEBC & 6 others [2013] eKLR,** stated: ***“I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate, and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This Court, indeed all courts, must never provide succor and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain, and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that there is a clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty, and clarity where issues of rules and their application are concerned…”*** 1. In the case of **Patrick Ochieno Obachi & 6 others v the Kenya Anti-Corruption Commission [2010] eKLR**, the court made the following observation regarding the failure to submit a supporting affidavit: ***“…that is a fatal technicality as it determines the substance, namely, the completeness of the petition. It follows that in terms of rule 14, that petition contains allegations without the affidavit evidence intended to accompany the petition to support allegations in the petition and that makes the petition incompetent.”*** 1. However, when considering the merits of the application, this court lacks jurisdiction to rule on bills of costs. In the Kenyan High Court, bills of costs are taxed by a designated Taxing Officer, typically the Registrar or Deputy Registrar. This procedure is primarily governed by Order 21, Rule 9(3) of the Civil Procedure Rules and the Advocates Act Cap 16. The relevant provisions for taxation are as follows: The Civil Procedure Rules define a taxing officer as someone qualified under paragraph 10 of the Advocates (Remuneration) Order (see **Ogolla v Onyango Otunga & Company Advocates [2023] KEHC 27214 (KLR)**). Sections 49 and 50 of the Advocates Act provide the legal framework for bringing advocate-client and third-party bills of costs for taxation. The Advocates (Remuneration) Order, a subsidiary legislation, provides operational guidelines and monetary scales—such as Schedule VI for High Court matters—that help the Registrar assess whether the billed items, including instruction fees, are reasonable. Thus, the 1st Respondent's application is filed in the wrong forum. 2. Thus, the 2nd application by the 1st Respondent is likewise dismissed. 3. Consequently, both applications are dismissed without an order concerning costs. **Dated, signed, and electronically delivered in Nyeri on the 10th day of June, 2026.** **E. K. MAKORI** **JUDGE** **In the presence of:** **The appellant (in person)** **Denis: Court Assistant** **In the absence of:** **Mr. Kamwenji for the 1st respondent**