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ELCDismissedNotice of Motion dated 11th November 2019 (ELC at Nyahururu)· [2020] KEELC 2563 (KLR)

Republic v County Land Adjudication and Settlement Officer-Laikipia County & another (Interested Parties); Kibaiga Kirangu Kimiri (Ex-parte) [2020] KEELC 2563 (KLR)

Environment and Land Court
6 May 2020
MOM.C. Oundo
3,120 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court dismissed a bid to pause a taxation hearing, ruling that taxed costs can be refunded, so an appeal suffers no irreversible harm.

What this practically means

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Executive summary

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By a Notice of Motion dated 11th November 2019, the Applicant sought a stay of taxation proceedings pending hearing of his appeal in Nakuru HCCA No. 195 of 2019, arguing the appeal would be rendered nugatory if taxation proceeded, that he would suffer irreparable loss as the Respondent had no means to refund taxed costs, and relying on Order 42 Rule 6 and Order 43 Rule 1(1) of the Civil Procedure Rules. The Subject/Respondent raised a preliminary objection that the application was res judicata the Notice of Motion dated 21st February 2019, which had been decided by a ruling of 11th June 2019, and further submitted the application was premature since no bill of costs had been taxed and no certificate of costs issued, that the Applicant failed to demonstrate substantial loss, unreasonable delay or provision of security, and that the decree had already been substantially executed. The court applied Section 7 of the Civil Procedure Act and the Bernard Mugo Ndegwa test, holding the prior ruling was not a final decision, so the res judicata objection failed. On the merits, the court, applying Kassam Khimji, the Leisure Lodges dictum on the Advocates (Remuneration) Order as a complete code, and Bernard Gichobi Njira, found no certificate of taxation existed to warrant a stay, that taxed costs are repayable by refund so the appeal could not be rendered nugatory, and no inability to refund was demonstrated. The application was dismissed with costs to the Subject/Respondent.

Key legal issues

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01

Whether the application was res judicata

Holding

The preliminary objection failed because the previous decision of 11th June 2019 was not final, an essential element of res judicata

Reasoning

Applying Section 7 of the Civil Procedure Act and the test in Bernard Mugo Ndegwa v James Nderitu Githae, the court found parties, title/claim and jurisdiction concurred, but the earlier ruling on the Notice of Motion dated 21st February 2019 did not amount to a final decision, and the orders sought in the two applications were not similar. A preliminary objection must also be capable of disposing of the suit, which this one did not.

p. 4
02

Whether stay of taxation proceedings could be granted

Holding

The application was dismissed as premature and unmerited; no certificate of taxation existed, and costs on taxation are repayable by refund, so the appeal would not be rendered nugatory

Reasoning

Relying on Kassam Khimji Ltd v Meridian Properties Ltd, the court noted that no certificate of taxation had been placed before it to warrant a stay. Following Bernard Gichobi Njira v Kanini Njira Kathendu & Another, payment of taxed costs is reversible by refund, and no allegation of the respondent's incapacity to refund had been made. The Advocates (Remuneration) Order provides a complete code for objections to taxation.

p. 4

Legal principles established

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  • Res judicata requires finality of the previous decision; where the prior ruling was not final, the plea fails
  • A decree does not strictly arise out of taxation; taxation produces a certificate of taxation, and stay of execution premised on uncompleted taxation is premature
  • The Advocates (Remuneration) Order is a complete code for aggrieved parties to challenge a taxing officer's decision

Court orders

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  1. 1.The Applicant's application dated 11th October 2019 (i.e. the Notice of Motion dated 11th November 2019) is dismissed with costs to the Subject/Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Evidence ActSection 107
  • Civil Procedure RulesOrder 42 Rule 6(1)(2) and 7; Order 43 Rule 1(1)
  • Advocates (Remuneration) OrderParagraphs 11 and 12

Cases cited (11)

  • Masisi Mwiti vs Damaris Wanjiku Njeri
    [2016] eKLR
  • National Bank of Kenya Limited & Another vs. Geoffrey Wahome Muotia
    [2016] eKLR
  • Lake Tanners Limited & 2 Others vs Oriental Commercial Bank Limited
    [2010] eKLR
  • Mukuma vs. Abuoga
    [1988] KLR 645
  • Mukisa Biscuits Manufacturing Co. Ltd –v- West End Distributors Limited
    (1969) EA. 696
  • Bernard Mugo Ndegwa -vs- James Nderitu Githae and 2 Others
    (2010) eKLR
  • Kassam Khimji Ltd vs Meridian Properties Ltd
    [2004] eKLR
  • Winding Up of Leisure Lodges Limited, Winding Up Cause No. 28 of 1996
  • Otieno Ragot & Company Advocates v Kenya Airports Authority
    [2015] eKLR
  • Sharma vs. Uhuru Highway Development Ltd
    [2001] 2 EA 531
  • Bernard Gichobi Njira v Kanini Njira Kathendu & Another
    [2016] eKLR
Jurisdiction invoked
Order 42 Rule 6 and Order 43 Rule 1(1) of the Civil Procedure Rules

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, "Republic v County Land Adjudication and Settlement Officer-Laikipia County & another (Interested Parties); Kibaiga Kirangu Kimiri (Ex-parte) [2020] KEELC 2563 (KLR)", Case Analysis (2020). Notice of Motion dated 11th November 2019 (ELC at Nyahururu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2563/eng@2020-05-06

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