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ELCDismissedNot stated in the judgment

Murage (Suing as the Administrator of the Estate of Bernard Chiori) v Land Registrar, Kilifi County & another (Environment and Land Case E046 of 2022) [2026] KEELC 2108 (KLR)

Environment and Land Court
14 April 2026
651 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Malindi court ruled that taxing a costs bill isn't execution, so a losing party awaiting appeal cannot delay it using stay-of-execution rules.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Malindi (Mwangi Njoroge, J) on the 2nd defendant's application dated 27/11/2025, brought under sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010. The applicant, who had filed a Notice of Appeal challenging the court's judgment and requested typed proceedings, sought a stay of all further procedures relating to the pending taxation of the plaintiff's party and party bill of costs scheduled for 1st December 2025, pending his appeal. The plaintiff opposed the application, contending it was premature; that taxation is distinct from the main suit and only ascertains costs due; that no prejudice would be suffered; that the bill of costs was not the subject of the trial or the intended appeal; and that taxation would in fact assist in determining what security the applicant should provide if he later sought a stay of execution. The court disposed of the application by written submissions. It identified the principal defect as the invocation of Order 42 Rule 6, a rule reserved for stays of execution of judgment and decree, not of taxation, observing that it had never encountered provisions providing for stay of taxation. Holding that taxation is not tantamount to execution and does not automatically lead to execution, and that the bill of costs was not an issue at trial, the court found no good ground for the stay sought and dismissed the application with costs to the plaintiff for want of merit.

Questions the Court framed

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

  1. 1.Whether Order 42 Rule 6 CPR, which governs stay of execution of judgment and decree, applies to a stay of taxation of a party and party bill of costs
  2. 2.Whether the 2nd defendant has made out good grounds for a stay of the pending taxation pending appeal

Key legal issues

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01

Whether a stay of taxation can be sought under Order 42 Rule 6 of the Civil Procedure Rules

Holding

No. Order 42 Rule 6 is reserved for stay of execution of judgment and decree; taxation is not execution, so the rule does not come into play and the court knows of no provisions providing for stay of taxation.

Reasoning

The court noted the application was premised on Order 42 Rule 6, a provision dealing with stay of execution of judgments and decrees. It held that taxation merely ascertains the amount of costs due and does not automatically lead to execution. Since what was sought was a stay of taxation, not of execution, the invoked rule did not apply. No other legal basis for staying taxation was identified.

p. 2
02

Whether good grounds existed to stay the pending taxation pending appeal

Holding

No. No good ground was established; the bill of costs was not the subject of the trial or the intended appeal, no prejudice was demonstrated, and taxation could even aid in fixing security for the appeal.

Reasoning

The plaintiff argued the application was premature, that no prejudice would flow from ascertaining the amount of costs, and that taxation is distinct from the main suit. The court agreed that the bill of costs was not an issue at trial and that determining costs could assist the applicant in offering security should he later seek a stay. Finding no justification, the court dismissed the application with costs.

p. 2

Legal principles established

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  • Taxation of costs is not execution and does not automatically lead to execution; Order 42 Rule 6, which provides for stay of execution of decrees, does not apply to stay of taxation
  • Taxation proceedings are distinct from the main suit and serve only to ascertain costs due to a party awarded costs; where the bill of costs was not the subject of the intended appeal, no stay of taxation is merited

Court orders

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  1. 1.The 2nd defendant's application dated 27/11/2025 seeking stay of taxation was dismissed with costs to the plaintiff

The bench

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

majority

Wrote the judgment

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

Relief refused

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Stay of all further procedures relating to the pending taxation of the plaintiff's party and party bill of costs pending the 2nd defendant's appeal

Taxation is not execution; Order 42 Rule 6 does not apply and no good ground for stay of taxation was shown

p. 2

Costs

Dismissed with costs to the plaintiff

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.

To this court, it is crystal clear that taxation is not tantamount to execution, and it does not automatically lead to execution.
p. 2Taxation distinguished from execution
In fact, in the experience of this court I have not come across provisions of law providing for stay of taxation.
p. 2Absence of legal basis for stay of taxation
Consequently, the application details 27th November 2026 is here by dismissed with costs to the plaintifi for want of merit.
p. 2Final orders - dismissal with costs

Issues in the judgment

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minor

The disposition misstates the application's date as 27th November 2026, whereas the application is dated 27/11/2025

minor

The judgment is dated 14th April 2026 but refers to a replying affidavit dated 5th December 2025 and a taxation date of 1st December 2025 as imminent, suggesting inconsistent internal chronology

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, "Murage (Suing as the Administrator of the Estate of Bernard Chiori) v Land Registrar, Kilifi County & another (Environment and Land Case E046 of 2022) [2026] KEELC 2108 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2108/eng@2026-04-14

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