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ELCAllowedNotice of Motion dated 24th October 2024 (in the Petition)

Brookshill Limited & another v County Government of Kwale & 3 others; Mwadzugwe & 2 others (Interested Parties) (Environment & Land Petition 25 of 2021) [2025] KEELC 3311 (KLR)

Environment and Land Court of Kenya
8 April 2025
4,286 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court stopped enforcement of taxed legal costs because the taxing master failed to give written reasons needed to challenge the award.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kwale (Hon. Mr. Justice L.L Naikuni, J) determined a Notice of Motion dated 24th October 2024 by Brookshill Limited and Ashbrook Limited, the 1st and 2nd Petitioners/Applicants, seeking stay of execution of Certificates of Costs issued following a taxation ruling of 25th September 2024 awarding Kshs 2,149,437 to the 1st Respondent and Kshs 1,118,250 to the Interested Parties. The application was brought under Order 42 Rule 6, Order 49 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, and was opposed by the 1st Respondent through a Replying Affidavit of M/s Farida K. Jadi, who argued it was an afterthought, that no reference had been filed and that the applicants had not demonstrated substantial loss. The court framed three issues: the principles for stay pending a reference, the merit of the application, and costs. Applying Order 42 Rule 6(2) and Butt v Rent Restriction Tribunal, the court found the threshold met: substantial loss was self-evident from the issued certificate, the one-month delay was not inordinate, and security was not raised. Crucially, the applicants' Notice of Objection of 8th October 2024 had not been answered by the taxing master, so the mandatory Rule 11 ARO procedure for supplying reasons had not been complied with, denying the applicants the ability to file a reference. Relying on First American Bank v Shah and Muchiri W' Njuguna on interference with taxation, the court allowed the application, directed the Deputy Registrar to furnish reasons within 14 days, stayed execution of the certificate of costs pending the giving of reasons, set a mention before the Taxing Master for 16th May 2025, and ordered each party to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.What are the fundamental legal principles to be considered for granting stay of execution pending the filing of Reference.
  2. 2.Whether the Notice of Motion application dated 24th October, 2024 by the Petitioners/Applicants for stay of execution of the ruling dated 25th September 2024 had any merit whatsoever.
  3. 3.Who bears the costs of the application?

Key legal issues

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01

Principles for grant of stay of execution pending a reference

Holding

The Order 42 Rule 6(2) threshold (substantial loss, no inordinate delay, security) applies and is discretionary, guided by Butt v Rent Restriction Tribunal.

Reasoning

The court restated the three conditions under Order 42 Rule 6(2) and the discretionary guidance in Butt v Rent Restriction Tribunal, including that stay must generally be granted so an appeal/reference is not rendered nugatory. Substantial loss was defined by reference to Mukuma v Abuoga and James Wangalwa v Agnes Naliaka Cheseto as loss that would render the intended reference nugatory.

p. 6
02

Whether the applicants met the stay threshold pending the intended reference

Holding

Yes - substantial loss was self-evident given the issued certificate of costs, the one-month filing delay was not inordinate, and no security issue was raised.

Reasoning

The court found a certificate of costs had been issued with impending execution, making substantial loss self-evident. The application filed a month after the ruling was not inordinate delay, and security was not raised. Critically, the applicants' Notice of Objection dated 8th October 2024 had elicited no response from the taxing master, meaning Rule 11 ARO's mandatory procedure for obtaining reasons had not been complied with, and execution before a reference would deny them an avenue to challenge the taxation.

p. 8
03

Circumstances for interfering with a Taxing Master's discretion

Holding

A court may interfere only where the decision was based on an error of principle or the fee was manifestly excessive, per First American Bank and Muchiri W' Njuguna.

Reasoning

Because staying execution of a certificate of costs effectively fetters the taxing master's discretion, the court examined the recognised grounds for interference: error of principle or manifestly excessive awards. The South African case Visser v Gubb was also cited on when a taxing master's discretion is improperly exercised. These principles framed the court's conclusion that the applicants must be given an avenue to challenge the taxation before execution.

p. 7
04

Costs of the application

Holding

Each party to bear its own costs, as the 1st Respondent could not be faulted for the taxing master's failure to respond to the objection.

Reasoning

Although costs follow the event under the proviso to Section 27(1) of the Civil Procedure Act, the court held that the 1st Respondent was not at fault for the taxing master's failure to avail a response to the objection, so no costs order against the Respondent was justified despite the application succeeding.

p. 9

Legal principles established

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  • A court cannot interfere with the Taxing Officer's decision on taxation unless the decision was based on an error of principle or the fee awarded was so manifestly excessive as to justify an inference of error of principle.
  • Where a Notice of Objection has been filed and the taxing master has not supplied reasons as required by Rule 11 of the ARO, execution of the certificate of costs may be stayed pending the giving of reasons.

Court orders

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  1. 1.The Notice of Motion application dated 24th October, 2024 be and is hereby allowed
  2. 2.The Deputy Registrar - Kwale ELC Court directed to furnish the Petitioners/Applicants with reasons for the ruling dated 25th September 2024 within 14 days from the date of the ruling
  3. 3.Execution of the Certificate of Costs dated 7th October 2024 stayed pending the giving of reasons on the decision of the Taxing Master and the 14 day's window of the giving of those reasons or such longer period as the taxing master may give upon issuance of her reasons
  4. 4.Matter to be mentioned on 16th May, 2025 before the Taxing Master - the Deputy Registrar - Kwale for providing the appropriate direction accordingly
  5. 5.Each party to bear its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Order 42 Rule 6, Order 49 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21

Quotable passages

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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 the execution of the Certificate of Costs dated 7th October 2024 is hereby stayed pending the giving of reasons on the decision of the Taxing Master and the 14 day's window of the giving of those reasons or such longer period as the taxing master may give upon issuance of her reasons.
p. 9Final orders - stay of execution
That an order is hereby issued directing the Deputy Registrar- Kwale ELC Court to furnish the Petitioners/Applicants with reasons for the ruling dated 25th September 2024 within 14 days from the date of this ruling.
p. 9Final orders - supply of taxing master's reasons
That each party to bear its own costs.
p. 9Final orders - costs
it is clear that the taxing master has not complied with the mandatory provisions above to enable the Petitioners/Applicants to further pursue the award of costs by filing of a reference.
p. 8Non-compliance with Rule 11 ARO
this court cannot interfere with the Taxing Oficer's decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was so manifestly excessive as to justify an inference that it was based on an error of principle
p. 7Interference with taxation

Issues in the judgment

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minor

The application seeks stay of the Certificate of Costs described as dated 25th September 2024 in the prayers, but the final order stays a certificate dated 7th October 2024.

minor

The parties and roles are inconsistently styled: the matter is described as a Petition with Petitioners/Respondents, yet the application is brought under ordinary civil procedure rules for stay of a costs certificate, and the Respondent's counsel describes the reference as time barred while the court finds the applicants still entitled to reasons before filing a reference.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Brookshill Limited & another v County Government of Kwale & 3 others; Mwadzugwe & 2 others (Interested Parties) (Environment & Land Petition 25 of 2021) [2025] KEELC 3311 (KLR)", Case Analysis (2025). Notice of Motion dated 24th October 2024 (in the Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3311/eng@2025-04-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.