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ELCDismissedNot stated in judgment (Environment and Land Court, Voi/Mombasa; suit over LR No. 1956/506)· [2020] KEELC 412 (KLR)

Sparkle Properties Limited v Johana Ngai & 8 others [2020] KEELC 412 (KLR)

Environment and Land Court of Kenya
5 November 2020
MSMUNYAO SILA
1,717 words in judgment
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The bottom line

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You cannot execute a land decree in Kenya before costs are taxed unless the court grants leave under Section 94 of the Civil Procedure Act.

What this practically means

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Executive summary

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The plaintiff, who had obtained judgment from Omollo J on 24 February 2020 for vacant possession of LR No. 1956/506 in Voi against the 1st to 7th defendants (who had purchased the land from the 8th defendant, Bata Shoe Company Limited), together with damages of KShs. 1,050,000/=, applied on 24 August 2020 under Sections 1A, 1B and 3A of the Civil Procedure Act for the Officer Commanding Voi Police Station to provide security while executing the decree by demolishing structures and evicting the occupants. The 1st to 7th defendants opposed, arguing inter alia that the director's capacity to swear the supporting affidavit was disputed, that they had filed Mombasa Civil Appeal No. 42 of 2020 with a stay application pending before the Court of Appeal, that the 7th defendant was deceased, that over 900 non-parties occupied the land, and crucially that the application offended Section 94 of the Civil Procedure Act because the decree was being executed before taxation of costs without leave. Munyao Sila J expressed doubt about the practicality of Section 94 for non-monetary decrees such as possession of land, observing little correlation between delivery of land and payment of costs, and suggested the section be relooked. However, being bound by the statute, and noting that the application did not cite Section 94 and the applicant made no submissions to sidestep it, the court held the application premature, declined the order for execution and dismissed the application, ordering each party to bear their own costs.

Key legal issues

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Necessity of compliance with Section 94 of the Civil Procedure Act before execution where costs have not been taxed

Holding

The application did not cite Section 94 and no submissions were made to sidestep it, so the application for execution before taxation was premature and was dismissed despite the court's doubts as to the section's practicality for possessory decrees

Reasoning

Section 94 requires the court to find it necessary that a decree be executed before costs are taxed. The judge doubted the rationale of the provision for non-monetary decrees such as delivery of land, observing little correlation between possession of land and payment of costs, and suggested the section be relooked. Nevertheless, being bound by the statute, and since the applicant neither cited Section 94 nor sought leave, the respondents had not been heard on whether execution should precede taxation, and the application was premature.

p. 2

Legal principles established

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  • A decree passed in the exercise of the High Court's original civil jurisdiction may only be executed before costs are ascertained by taxation if the court orders so under Section 94 of the Civil Procedure Act

Court orders

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  1. 1.The application dated 24 August 2020 is dismissed for prematurity for want of compliance with Section 94 of the Civil Procedure Act
  2. 2.Each party will bear his/her own costs

Authorities

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Legislation

  • Civil Procedure Act, Cap 21, Laws of KenyaSection 1A
  • Civil Procedure Act, Cap 21, Laws of KenyaSection 1B
  • Civil Procedure Act, Cap 21, Laws of KenyaSection 3A
  • Civil Procedure Act, Cap 21, Laws of KenyaSection 94
  • Civil Procedure RulesOrder 22 Rule 18(1)

Cases cited (1)

  • Joyce Wambui Karuu vs Kenya Nut Company Limited
    (2020) eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21, Laws of Kenya

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, "Sparkle Properties Limited v Johana Ngai & 8 others [2020] KEELC 412 (KLR)", Case Analysis (2020). Not stated in judgment (Environment and Land Court, Voi/Mombasa; suit over LR No. 1956/506). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/412/eng@2020-11-05

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