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ELCDismissedNotice of Motion dated 4th November 2019 (arising from judgment delivered 30th July 2019)· [2020] KEELC 1695 (KLR)

Toncap Investment v Luore Management [2020] KEELC 1695 (KLR)

Environment and Land Court
11 June 2020
GOG. M. A. Ongondo
1,563 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kshs 300,000 court deposit for costs was not a final figure—Toncap still owes whatever amount taxation determines, plus costs for challenging it.

What this practically means

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Executive summary

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By a Notice of Motion dated 4th November 2019 under Section 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules, the appellant, Toncap Investment, sought a stay of the taxation of the respondent Luore Management's bill of costs dated 26th September 2019 and clarification of paragraph 27(d)(ii) of the court's judgment of 30th July 2019. The appellant contended that a deposit of Kshs 300,000 made as security for costs on 20th November 2018 constituted the final figure as to costs, making the additional Kshs 263,365 in the bill premature, excessive and unjust. The respondent, through the affidavit of its director Philip Okundi, countered that the deposit did not fix the costs payable, which could be ascertained by agreement or by taxation under the Advocates Remuneration Order 2014, and asked that the bill proceed to taxation. The court, having considered rival written submissions, framed two issues: whether the Kshs 300,000 deposit was the final figure as to costs, and what orders should issue. Defining 'ameliorate' as 'to make better', and applying the reasoning in the Munya appeal quoting Majanja J in Patrick Ngeta Kimanzi that security for costs exists to ensure a respondent is not left without recompense, the court held that paragraph 27(d)(i) and (ii) were cumulative and that it had not assessed the costs payable. The application was accordingly determined against the applicant: the judgment was clarified to mean the deposit merely ameliorates taxable costs, the bill of costs was allowed to proceed to taxation, and the applicant was ordered to bear the costs of the application. Judgment was delivered at Migori by email on 11th June 2020 due to the Corona Virus pandemic.

Key legal issues

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01

Whether the Kshs 300,000 deposited as security for costs was a final figure as to costs

Holding

It was not a final figure; it was a security to be applied to make better (ameliorate) the respondent's costs after taxation

Reasoning

The court examined paragraph 27(d)(i) and (ii) of its earlier judgment and found the orders cumulative in nature. Relying on the meaning of 'ameliorate' from Black's Law Dictionary and the Munya decision quoting Majanja J in Patrick Ngeta Kimanzi, the court held that security for costs exists to ensure the respondent is not left without recompense, and the trial court in this matter had not assessed the costs payable. Therefore the deposit only ameliorates costs to be determined by taxation.

p. 2
02

Whether the respondent's bill of costs should proceed to taxation

Holding

Yes; the bill of costs dated 26th September 2019 was allowed to proceed for taxation by the taxing master

Reasoning

Since the judgment did not fix the costs payable, the only lawful route to ascertain the respondent's costs is taxation before the taxing master. The deposit of Kshs 300,000 does not preclude taxation but will be applied to reduce (ameliorate) whatever costs are ascertained.

p. 3

Legal principles established

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  • A deposit ordered as security for costs that is to 'ameliorate' the successful party's costs is not a final assessment of costs; the party may still have its bill of costs taxed

Court orders

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  1. 1.Clarification that paragraph (d)(ii) of the judgment delivered on 30th July 2019 means the court did not assess the costs payable to the respondent but only directed that the Kshs 300,000 security for costs deposited on 20th November 2018 shall be applied to make better (ameliorate) the respondent's costs taxable by the taxing master
  2. 2.The respondent's bill of costs dated 26th September 2019 and filed on 1st October 2019 be and is hereby allowed to proceed for taxation by the taxing master
  3. 3.Costs of the application shall be borne by the applicant

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Section 3A
  • Civil Procedure Act, Cap 21Section 27(1)
  • Civil Procedure Rules, 2010Order 51 rules 1, 2, 4 and 16
  • Environment and Land Court Practice Directions, 2014Practice Direction 33(a) and (b)
  • Advocates Remuneration Order 2014null
  • Environment and Land Court Act, 2015 (2011)Sections 3 and 19
  • Constitution of Kenya, 2010Articles 7(3)(b), 159(2)(b) and (d)

Cases cited (5)

  • Cecilia Karuru Ngayu –vs- Barclays Bank of Kenya and another
    (2016) eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji and 2 others
    (2014) eKLR
  • Reese –vs- Albert
    (1993) 5 ALR (3rd) 40
  • Patrick Ngeta Kimanzi v Marcus Mutuamuluvi and 2 others
    High Court Election Petition No. 8 of 2018
  • Rai and others –vs- Rai and others
    (2014) eKLR
On appeal from
Landlord and Tenant Business Premises Tribunal
Jurisdiction invoked
Section 3A of the Civil Procedure Act, Cap 21; Order 51 rules 1, 2 and 4 of the Civil Procedure Rules; Sections 3 and 19 of the Environment and Land Court Act, 2015

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, "Toncap Investment v Luore Management [2020] KEELC 1695 (KLR)", Case Analysis (2020). Notice of Motion dated 4th November 2019 (arising from judgment delivered 30th July 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1695/eng@2020-06-11

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