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ELCDismissedNotice of Motion Application dated 25th July 2017· [2018] KEELC 2824 (KLR)

Arif Bayasuf v Lucy Tofani [2018] KEELC 2824 (KLR)

Environment and Land Court
28 June 2018
JOJ.O. Olola
800 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicant, Reynard B.O. Ochieng, advocate for the plaintiff in the underlying suit, moved the court by Notice of Motion dated 25th July 2017 seeking entry of judgment for the full sum of Kshs 312,114.24 assessed by the Taxing Master in a Party and Party Bill of Costs, together with interest at 14% per annum, and costs of the application. The Applicant relied on a Certificate of Costs issued on 15th June 2017 which had not been challenged or altered. The Respondent, through counsel Tukero Ole Kina, opposed the motion in replying affidavits filed on 15th and 20th December 2017, contending that the plaintiff had twice appealed the taxing master's decision, that Kshs 100,000 had been paid in April 2017, and that the balance of Kshs 212,114.25 was released on or about 12th September 2017 after service of the motion, leaving nothing due. The court found that the Respondents were served with the motion on 28th July 2017 before releasing the balance, but that by the time the application was argued on 20th December 2017 the entire sum claimed had been fully settled. The court also found the claim for the full certificate amount had been overstated since Kshs 100,000 had been paid in April 2017. On interest, the court held the claim was neither made in the application nor tenable because no interest was awarded in the Certificate of Costs. The court accordingly disallowed the application and ordered each party to bear their own costs. Judgment was delivered at Malindi on 28th June 2018 by J.O. Olola, Judge.

Key legal issues

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01

Whether the application survived the full payment of the taxed costs

Holding

The application was disallowed as it had been overtaken by events

Reasoning

The certificate of costs was for Kshs 312,114.24. The Respondent paid Kshs 100,000 in April 2017 and released the balance in September 2017, before the application came up for arguments in December 2017. Since the entire sum claimed had been settled, there was nothing left to enforce and the motion was overtaken by events.

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02

Whether interest at 14% per annum was payable

Holding

The claim for interest was refused

Reasoning

The Certificate of Costs contained no award of interest, and the motion itself sought judgment on the taxed sum; the demand for interest at 14% was made only in submissions. The court held the claim was neither pleaded nor tenable given the absence of any interest award in the certificate.

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03

Whether the sum demanded in the motion was due when filed

Holding

The full certificate amount was not due as Kshs 100,000 had already been paid in April 2017

Reasoning

By a letter dated 13th April 2017 the Respondent released Kshs 100,000, which the Applicant acknowledged on 24th April 2017 while demanding only the balance of Kshs 212,114.24. The motion of 25th July 2017 nonetheless claimed the entire Kshs 312,114.24, a sum evidently not then due.

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Legal principles established

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  • An application for judgment on a certificate of costs that is fully satisfied before hearing is overtaken by events and will be disallowed
  • Interest on taxed costs cannot be awarded where none was awarded in the certificate of costs and where the claim for interest was not made in the application

Court orders

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  1. 1.The application was disallowed
  2. 2.Each party to bear their own costs
Jurisdiction invoked
Original civil jurisdiction to enforce a Certificate of Costs issued by the Taxing Master

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, "Arif Bayasuf v Lucy Tofani [2018] KEELC 2824 (KLR)", Case Analysis (2018). Notice of Motion Application dated 25th July 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2824/eng@2018-06-28

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