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ELCDismissedELC Land Case No. E089 of 2024

County Government of Kajiado v Tata Chemicals Magadi Limited

Environment and Land Court of Kenya
24 September 2026
2,881 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kajiado County lost its bid to pause a Kshs. 154 million costs bill, because filing an appeal alone does not stop court proceedings in Kenya.

What this practically means

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Executive summary

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The County Government of Kajiado (Plaintiff/Applicant) moved the Environment and Land Court at Kajiado under Sections 1A, 3A and 63(e) of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, seeking a stay of further proceedings in the taxation of Tata Chemicals Magadi Limited's Party and Party Bill of Costs for Kshs. 154,495,372.91, pending its appeal (Nairobi Civil Appeal No. E1106 of 2025) against the striking out of its plaint on 6th November 2025 for want of jurisdiction. The Applicant argued its appeal raised substantial jurisdictional questions under Section 13 of the ELC Act and the repealed Rating Act, and cited the Respondent's alleged Kshs. 10.284 billion rates indebtedness as exceptional circumstances. The Respondent countered that the application was premature, that no substantial loss or security was demonstrated, and relied on the Court of Appeal's judgment in Civil Appeal No. 530 of 2019 nullifying the County's Finance Bills. M.D. Mwangi J framed a single issue: whether the threshold for a stay of taxation proceedings was met. The Court held that taxation forms part of the execution process, so Order 42 Rule 6 applies even to an untaxed bill, but found the Applicant had shown only an arguable appeal - not substantial loss, nugation of the appeal, or security. The bill's figure was merely claimed, not ascertained, and the alleged counter-debt was no legal answer to costs proceedings. The Notice of Motion was dismissed with costs to the Defendant/Respondent.

Questions the Court framed

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

  1. 1.Whether the Plaintiff/Applicant has satisfied the legal threshold for an order staying further proceedings in respect of the taxation of the Defendant/Respondent's Party and Party Bill of Costs pending the hearing and determination of Nairobi Civil Appeal No. E1106 of 2025

Key legal issues

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01

Whether the Court has jurisdiction to stay taxation of a bill of costs not yet taxed

Holding

Yes - prematurity of taxation does not deprive the Court of jurisdiction, since taxation is part of the execution process and Order 42 Rule 6 applies.

Reasoning

The Respondent argued the application was premature because the bill was untaxed. The Court held that taxation is connected with enforcement and ascertainment of costs awarded, and that Order 42 Rule 6 may apply to applications to halt taxation, following Musyoka Kimeu and Dickson Sinkeet Mapi. Jurisdiction therefore existed, but the Applicant failed on the merits of the discretion.

p. 7
02

Whether the Applicant demonstrated substantial loss or that the appeal would be rendered nugatory

Holding

No. The untaxed bill figure is not an ascertained liability; alleged counter-indebtedness of the Respondent is no answer to costs proceedings; no irreversible prejudice was shown.

Reasoning

The Court found the Kshs. 154,495,372.91 figure was merely claimed, not judicially ascertained, so apprehension of loss was speculative. The alleged Kshs. 10.284 billion rates debt does not extinguish or suspend a costs award and cannot constitute security or substantial loss. The Applicant could participate in taxation and challenge any adverse decision through lawful channels.

p. 10
03

Whether failure to offer security defeats the application

Holding

Yes. Order 42 Rule 6(2)(b) requires security, and the Applicant offered none, which weighed against the grant.

Reasoning

The Court noted the statutory requirement that an applicant give such security as the Court may order for due performance of the decree ultimately binding on it. The Applicant neither proposed nor offered security. Citing Vishram Ravji Halai and Africert Limited v Nyaga, the Court held the omission assumes significance where the applicant seeks to restrain the successful party from pursuing its costs.

p. 12
04

Effect of the Court of Appeal judgment in Civil Appeal No. 530 of 2019 on the application

Holding

The Court declined to determine the effect of that judgment on the pending appeal, refraining from prejudicing appellate consideration.

Reasoning

The Respondent relied on the Court of Appeal judgment nullifying Kajiado County Finance Bills. The Court held it was neither necessary nor appropriate to determine that judgment's effect on the merits of the pending appeal, since the appeal is before the Court of Appeal. It also noted that a pending Supreme Court application does not suspend the appellate judgment absent a stay.

p. 14

Legal principles established

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  • The filing of an appeal does not operate as a stay of execution or proceedings; a stay must be sought and granted under Order 42 Rule 6.
  • Taxation of party and party costs forms part of the execution process, so Order 42 Rule 6 may apply to an application to stay taxation even before the bill is taxed.
  • A stay of proceedings is a drastic remedy requiring exceptional circumstances; an arguable appeal alone does not entitle an applicant to a stay of proceedings.
  • An applicant for stay must offer security under Order 42 Rule 6(2)(b); failure to propose or offer security weighs against the grant.

Court orders

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  1. 1.The application dated 19th March 2026 is dismissed with costs to the Defendant/Respondent

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, 3A and 63(e) of the Civil Procedure Act; Order 42 Rule 6(1) & (2) and Order 51 Rules 1 and 4 of the Civil Procedure Rules

Relief refused

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Stay of further proceedings in the taxation of the Defendant's Party and Party Bill of Costs for Kshs. 154,495,372.91 pending Nairobi Civil Appeal No. E1106 of 2025

Applicant failed to demonstrate substantial loss, that the appeal would be rendered nugatory, or offer security under Order 42 Rule 6(2)

p. 15

Costs

The application dated 19th March 2026 is dismissed with costs to the Defendant/Respondent.

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.

The application dated 19th March 2026 is hereby dismissed with costs to the Defendant/Respondent.
p. 15Final orders - dismissal of the Notice of Motion
The starting point is that the filing of an appeal does not, of itself, operate as a stay.
p. 6Appeal does not operate as stay
Taxation of costs is part of the execution process, complete with its provisions for stay of execution.
p. 7Taxation as part of execution process
Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation.
p. 8Stay of proceedings as drastic remedy
A successful litigant is not required to forgo the benefits of a judgment merely because the unsuccessful party has exercised its right of appeal.
p. 13Rights of successful litigant pending appeal
the Court finds that the Applicant has not satisfied the threshold for the grant of a stay of further proceedings in the taxation of the Respondent's Party and Party Bill of Costs dated 19th January 2026
p. 15Conclusion on threshold for stay

Issues in the judgment

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minor

Case number inconsistency between caption and footer

minor

Application dated 19th March 2026 but Notice of Appeal filed 13th November 2025 and bill dated 19th January 2026 - chronology internally consistent only if year is 2026

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, "County Government of Kajiado v Tata Chemicals Magadi Limited", Case Analysis (2026). ELC Land Case No. E089 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5970/eng@2026-09-24

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