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ELCDismissedMeru HCC 129 of 1994 (OS) - applications dated 30.07.2013, 27.11.2019 and 05.07.2019· [2020] KEELC 123 (KLR)

Anjero Kinoti Muthamia v Monica Kinya Kinoti (Sued as the administratix of the Estate of Silas Kinoti M’Itonga [2020] KEELC 123 (KLR)

Environment and Land Court
18 November 2020
1,430 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A landowner who ignored an eviction order for ten years lost his bid to overturn taxed costs and stop execution, owing Ksh 216,372.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Meru (Lucy N. Mbugua, ELC Judge) determined two applications by Angelo Kinoti Muthamia, who had lost a claim for three acres of parcel Nyaki/Giaki/1073 by adverse possession. The Court of Appeal in Nyeri Civil Appeal No. 48 of 2005 (judgment of 10.12.2010) allowed the respondent's counterclaim for eviction, ordered the applicant to vacate within three months, and awarded costs in both courts. Taxation followed, and a notice to show cause dated 04.06.2019 was taken out against the applicant for a total of Ksh 216,372. The applicant sought setting aside of the High Court taxation of Ksh 42,572, leave to participate in re-taxation, and a stay with striking out of the notice to show cause, contending he was condemned unheard, that the figure was excessive, and that Court of Appeal costs could only be executed before that court's Deputy Registrar. The respondent maintained that the applicant's then advocates were served and filed a bill of costs, and that the total comprised Ksh 42,572 (High Court) and Ksh 173,800 (Court of Appeal), with signed certificates. The court found the taxation properly done, held that under section 4 of the Appellate Jurisdiction Act the Court of Appeal decree is executable as a High Court judgment, noted the applicant's disobedience of the eviction order for nearly ten years and his unclean hands, and dismissed both applications with costs to the respondent.

Key legal issues

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01

Whether the High Court taxation of 16.04.2013 (Ksh 42,572) should be set aside and the bill re-taxed

Holding

Taxation was properly done; the applicant's advocate was served and even filed a bill of costs, and the applicant offered no plausible rebuttal or basis for his own figure

Reasoning

The respondent deposed that the applicant's then advocate was served with notice of taxation and filed a bill of costs drawn at Ksh 87,495. The applicant did not rebut these averments by further affidavit or submissions and gave no plausible reason for his claim that the costs should be under Ksh 10,000. The court accordingly found no merit in the prayer for re-taxation.

p. 2
02

Whether the notice to show cause dated 4.6.2019 should be stayed or struck out

Holding

The notice to show cause is a proper step in the execution of the Court of Appeal decree; the respondent explained the combined figure of Ksh 216,372 and execution before the High Court is lawful

Reasoning

The combined figure comprised the High Court bill taxed at Ksh 42,572 and the Court of Appeal bill taxed at Ksh 173,800, with certificates signed by the relevant Deputy Registrars. Under section 4 of the Appellate Jurisdiction Act, a Court of Appeal judgment may be executed as a High Court judgment. The applicant, having disobeyed for nearly ten years the order to vacate, approached the court with unclean hands and was merely seeking to derail execution.

p. 2

Legal principles established

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  • A judgment of the Court of Appeal may be executed and enforced as if it were a judgment of the High Court
  • A party who alleges he was not served or heard on taxation must rebut the evidence of service, failing which the taxation stands

Court orders

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  1. 1.Both applications dated 05.07.2019 and 27.11.2019 dismissed with costs to the respondent

Authorities

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Legislation

  • Appellate Jurisdiction Act (Cap 9, Laws of Kenya)section 4
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure RulesOrder 21 rule 1
Jurisdiction invoked
Execution and enforcement of a Court of Appeal decree under section 4 of the Appellate Jurisdiction Act (Cap 9) as if it were a judgment of the High Court, in matters arising from Meru HCC 129 of 1994 (OS)

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, "Anjero Kinoti Muthamia v Monica Kinya Kinoti (Sued as the administratix of the Estate of Silas Kinoti M’Itonga [2020] KEELC 123 (KLR)", Case Analysis (2020). Meru HCC 129 of 1994 (OS) - applications dated 30.07.2013, 27.11.2019 and 05.07.2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/123/eng@2020-11-18

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