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ELCDismissedApplication dated 4/11/2016 in the principal suit (number not stated in the judgment)· [2017] KEELC 1446 (KLR)

Christine Chepchichir Baig v Mizra Iqbal Baig & another [2017] KEELC 1446 (KLR)

Environment and Land Court
20 September 2017
3,971 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Paying your 'share' of jointly awarded court costs in Kenya does not stop full recovery from you if the other party cannot pay.

What this practically means

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Executive summary

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The 2nd defendant, Agriseed Co. Ltd, applied by notice of motion dated 4/11/2016 for a temporary stay of execution, recall of warrants issued to Fefma Auctioneers, and setting aside of the execution process against it, on the ground that it had paid its 'share' of the taxed costs and that execution was irregular for want of a Notice to Show Cause under Order 22 Rule 18(1). The plaintiff opposed, producing the decree dated 16th October 2014 showing costs awarded against both defendants jointly and severally; the 1st defendant associated himself with the plaintiff's submissions. The court framed three issues. First, it held that costs having been awarded jointly and severally without apportionment, the plaintiff may execute against any or both defendants for the full amount; the 2nd defendant's remedy, if it pays the whole, is reimbursement from the 1st defendant, whose fraudulent conduct caused the litigation. Secondly, although the court agreed that a Notice to Show Cause should technically have issued - the proviso to Order 22 Rule 18(1) did not assist the plaintiff because the 7/4/2016 order arose from the 2nd defendant's stay application, not a prior execution application, and the decree date rather than the taxation date governs the one-year computation - no prejudice was demonstrated. Thirdly, the objection to the consolidated Bill of Costs failed, as it should have been raised at taxation where the represented 2nd defendant successfully challenged items for duplicity. The application was dismissed with costs to the plaintiff. Delivered at Kitale on 20th September 2017 by Mwangi Njoroge J.

Key legal issues

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01

Whether payment of a purported 'share' of jointly and severally awarded costs shields the 2nd defendant from further execution

Holding

No. The court did not apportion costs between the defendants; a joint and several costs order allows execution against either defendant for the whole amount.

Reasoning

The court has an unfettered discretion on costs. It deliberately denied the 1st defendant the costs of the counterclaim, showing its mind was focused on apportionment, yet it did not apportion the plaintiff's claim costs between the defendants - a conscious decision permitted by law. Two persuasive authorities support recovery of the entire sum from one defendant; the 2nd defendant may then seek reimbursement from the 1st.

p. 4
02

Whether the execution process offended Order 22 Rule 18(1) for want of a Notice to Show Cause

Holding

Technically a Notice to Show Cause should have issued since execution was sought more than one year after the decree and the proviso did not assist the plaintiff; however no prejudice was established warranting setting aside.

Reasoning

More than one year elapsed between the decree (3/11/2014) and the application for execution (17/10/2016). The plaintiff's reliance on the proviso failed because the order of 7/4/2016 arose from the 2nd defendant's stay application, not a prior application for execution by the plaintiff. The date of the decree, not taxation, governs the computation. Nevertheless the applicant demonstrated no additional prejudice.

p. 6
03

Whether the Bill of Costs should have separated the costs of the plaintiff's claim from those of the 2nd defendant's counterclaim

Holding

No relief turns on this; the objection should have been raised at taxation, where the 2nd defendant was represented and did challenge the bill successfully on duplicity.

Reasoning

While a counterclaim is a separate suit, the 2nd defendant was silent on whether it challenged the bill's form and content after service. At taxation the Taxing Master disallowed items for duplicity, relying on precedent, which satisfied the 2nd defendant's submissions. Having participated in taxation without raising the point, it cannot complain now.

p. 6

Legal principles established

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  • Where costs are awarded against parties jointly and severally, the decree-holder may execute against any or both of them for the full amount; a party paying more than its share must seek reimbursement, not immunity from execution
  • For purposes of the one-year period in Order 22 Rule 18(1)(a), the date of the decree, not the date of taxation, is the relevant date
  • A dismissal of a judgment-debtor's stay application is not an 'order made on a previous application for execution' capable of invoking the proviso to Order 22 Rule 18(1)

Court orders

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  1. 1.The application dated 4/11/2016 is dismissed with costs to the plaintiff
  2. 2.It is so ordered

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 18(1)
  • Civil Procedure RulesOrder 22 Rule 19
  • Stamp Duty Actreferenced in the plaint

Cases cited (3)

  • Arthur Kibira Apungu & Another -vs- The IEBC and 2 Others
    Kakamega Election Petition No. 7 of 2013
  • Dr. John Gachanja Mundia -vs- Francis Muiira & Another
    Meru HC Civil Application No. 42 of 2015
  • Desai Sarria and Pallan Advocates Vs Jambo Biscuits K ltd
    2014 eKLR
Jurisdiction invoked
Original civil suit jurisdiction of the Environment and Land Court over the decree in the suit, including execution of its decree ( Civil Procedure Act and Rules, Order 22)

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, "Christine Chepchichir Baig v Mizra Iqbal Baig & another [2017] KEELC 1446 (KLR)", Case Analysis (2017). Application dated 4/11/2016 in the principal suit (number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1446/eng@2017-09-20

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