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ELCAllowedNot stated in the judgment as provided· [2022] KEELC 3570 (KLR)

Reinhard v Nthenya & another; Maurizio Mario Amici Miei Limited (Interested Party); Keller (Objector) (Environment & Land Case 108 of 2012) [2022] KEELC 3570 (KLR)

Environment and Land Court (magistrate-level ruling delivered at Malindi)
11 May 2022
MOM.A. Odeny
739 words in judgment
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The bottom line

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A Kenyan court can let you enforce a judgment for damages before the costs of the case are calculated, as long as the other side was given a chance to respond.

What this practically means

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Executive summary

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This ruling by M.A. Odeny, Judge, delivered at Malindi on May 11, 2022, determined a notice of motion dated December 16, 2019 by the plaintiff/applicant seeking leave to execute a decree before the costs of the suit were ascertained by taxation. The underlying judgment, embodied in a decree dated July 19, 2018, had awarded the plaintiff eviction orders, mesne profits and costs of the suit, with no appeal lodged. The plaintiff had successfully executed the eviction order, and through her then advocates attempted to execute for mesne profits, which the defendants objected to. The court then gave the plaintiff three choices: file a bill of costs for taxation, seek leave to execute before costs are taxed, or formally abandon costs and execute. The plaintiff opted to seek leave, explaining she had no intention to execute for costs. The respondents neither filed a response nor submissions, and the court found the application unopposed after proper service. Relying on section 94 of the Civil Procedure Act and the Court of Appeal decision in Lakeland Motors Limited v Harbhajan Singh Sembi, which requires parties be given an opportunity to be heard before such an order is made, the court found the application had merit, allowed it as prayed, and granted leave to execute the decree for mesne profits before costs were ascertained. The ruling was delivered online pursuant to Covid-19 directives, waiving Order 21(1) of the Civil Procedure Rules.

Key legal issues

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01

Whether leave should be granted to execute the decree for mesne profits before costs are taxed

Holding

The application was allowed; the applicant was granted leave to execute for mesne profits before costs are ascertained.

Reasoning

The court considered section 94 of the Civil Procedure Act empowering it to order execution of a decree before costs are ascertained by taxation. The applicant had complied with the requirement of an opportunity to be heard by serving the respondents, who chose not to respond or file submissions, rendering the application unopposed. The court found the application to have merit and allowed it as prayed.

p. 3

Legal principles established

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  • Under section 94 of the Civil Procedure Act, a court may order that a decree passed in its original civil jurisdiction be executed forthwith before costs are ascertained by taxation, except as to costs, which may be executed once taxed
  • Parties to a decree should be availed an opportunity to be heard before an order for execution before taxation is made

Court orders

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  1. 1.Leave granted to the plaintiff/applicant to execute the decree dated July 19, 2018 for mesne profits before the costs of the suit are ascertained by taxation
  2. 2.Costs of the application provided for (application allowed as prayed)

Authorities

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Legislation

  • Civil Procedure ActSection 94
  • Civil Procedure RulesOrder 21 [1]

Cases cited (2)

  • Lakeland Motors Limited v Harbhajan Singh Sembi
    [1998] eKLR
  • Bamburi Portland Cement Company Limited v Imranali Chandbhai Abdulhussein
    Civil Appeal No 83 of 1995 (unreported)
Jurisdiction invoked
Section 94 of the Civil Procedure Act

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, "Reinhard v Nthenya & another; Maurizio Mario Amici Miei Limited (Interested Party); Keller (Objector) (Environment & Land Case 108 of 2012) [2022] KEELC 3570 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3570/eng@2022-05-11

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