Texas Alarms (K) Ltd v BOS Shipping (East Africa) Limited & another (Civil Application E094 of 2025) [2026] KECA 1069 (KLR)
The bottom line
#Kenya's Court of Appeal paused collection of taxed costs, ruling the appeal was arguable and the money should stay in a joint escrow account.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether the intended appeal will be rendered nugatory absent an order of stay
Key legal issues
#Whether the intended appeal is arguable
The intended appeal is arguable because the applicant intends to challenge the ascertainment of the value of the subject matter only for taxation purposes and the introduction of a valuation report neither pleaded nor produced in evidence.
The Court applied the two-limb test in Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 Others. It found the challenge to the Taxing Master's reliance on a valuation report not previously pleaded, produced, or subject to the issues for determination to be a bona fide ground worthy of consideration by a full bench, satisfying the low arguability threshold without needing to establish that the appeal would necessarily succeed.
Whether the appeal will be rendered nugatory absent stay of the taxed costs
Stay was granted because the taxed costs were already deposited in a joint escrow account, and keeping the monies there serves the interests of both parties while execution proceedings continue in the ELC.
Applying National Industrial Credit Bank vs. Wasike, the Court noted the applicant had demonstrated financial capacity by depositing the taxed costs, while the respondent's ability to refund rested only on assertions of rent income and property value with no accounts produced. Balancing the interests of justice and the likely prejudice, the scales tilted toward leaving the monies in the escrow account pending determination of the intended appeal.
Legal principles established
#- On a rule 5(2)(b) application, the applicant must first show an arguable appeal (one that is not frivolous, not necessarily one that will succeed) and, secondly, that the appeal will be rendered nugatory unless stay is granted.
- Where a money decree is involved and an applicant expresses a reasonable fear that a respondent would be unable to refund the decretal sum, the evidential burden shifts to the respondent to show what resources he has.
- The threshold for arguability is low: a single bona fide ground of appeal worthy of consideration by a full bench suffices.
Court orders
#- 1.Stay of execution issued in respect of the taxed costs contained in the Certificate of Costs issued on 21st June 2024, together with interest accruing thereon, pending the hearing and determination of the intended appeal against the ruling delivered by Kibunja, J. on 2nd July 2025 in ELC Case No. 121 of 2019
- 2.The taxed costs shall continue to remain in the escrow account
- 3.Costs shall abide the outcome of the appeal
- 4.The Motion against the 2nd respondent was marked as withdrawn
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Environment and Land Court at Mombasa
- ELC Case No. 121 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That stay of execution be and is hereby issued in respect of the taxed costs contained in the Certificate of Costs issued on the 21st June 2024, together with interest accruing thereon pending the hearing and determination of the intended appeal against the ruling delivered by Kibunja, J. on 2nd July 2025 in ELC Case No. 121 of 2019.
That the taxed costs shall continue to remain in the escrow account.
Costs shall abide the outcome of the appeal.
while the legal duty is on an applicant to prove the allegation that an appeal would be rendered nugatory because a respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by a respondent or the lack of them.
Issues in the judgment
#The judgment is dated 29th May 2026 but recites a hearing on 16th December 2025 and references a supplementary affidavit sworn 15th November 2025 describing amounts 'as at 7th August 2025'; the internal chronology is consistent, but the sequence of the Taxing Master's certificate (21st June 2024) preceding the ELC ruling (2nd July 2025) being appealed suggests the stay relates to costs taxed before the ruling under appeal - a point the judgment does not clarify.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Texas Alarms (K) Ltd v BOS Shipping (East Africa) Limited & another (Civil Application E094 of 2025) [2026] KECA 1069 (KLR)", Case Analysis (2026). Notice of Motion dated 3rd November 2025 (Civil Appeal, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1069/eng@2026-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.