Ali & 2 others v Boit & another
The bottom line
#A Kenyan court dismissed a late bid to reopen taxed legal costs and allowed eviction and property attachment to enforce a 2014 land judgment.
What this practically means
#Executive summary
#Key legal issues
#Whether the bill of costs could be reopened for fresh taxation
No - the defendants bypassed the mandatory objection procedure under rule 11 of the Advocates Remuneration Order 2009 and did not seek extension of time
Rule 11 requires an aggrieved party to lodge a notice of objection within 14 days of taxation and then a reference to a judge. The defendants, aggrieved by the taxation of February 17, 2015, instead filed a motion in 2021 seeking reopening. The court held the lodgement of a notice of objection is peremptory and mandatory, and since no extension of time was sought, the application was a half-hearted attempt in disregard of the law and was dismissed.
Whether eviction and execution orders should issue against the 2nd defendant
Yes - the appeal having been dismissed, the 2015 eviction orders were no longer stayed and the application for execution was allowed as prayed
The court noted eviction orders had been granted on October 23, 2015 and the Court of Appeal's conditional stay lapsed upon dismissal of the appeal on December 3, 2021. Though functus officio on the final judgment, the court retains jurisdiction over execution. The defendant did not oppose eviction but sought six months, which the court did not address in its final orders; the application was allowed as prayed with costs.
Legal principles established
#- A party aggrieved by a taxing officer's decision must lodge a notice of objection within 14 days and thereafter a reference; the court cannot reopen taxation in disregard of rule 11 of the Advocates Remuneration Order
- A court that has rendered a final decision is functus officio but retains responsibility to deal with execution proceedings as moved by the parties
- Dismissal of an appeal by the Court of Appeal lifts any stay, reviving eviction orders previously granted by the trial court
Court orders
#- 1.The defendants' notice of motion dated June 7, 2021 is dismissed with costs
- 2.The plaintiffs' notice of motion dated January 21, 2022 is allowed as prayed with costs, including eviction of James C Boit from land parcel No Uasin Gishu/Sosiani/28, security by the OCS Juakali Police Station for court bailiffs, and attachment and auction of Uasin Gishu/Sosiani/25 to satisfy the taxed costs
- Jurisdiction invoked
- Original and supervisory jurisdiction of the Environment and Land Court over the suit and its execution proceedings, including taxation of costs (rule 11 of the Advocates Remuneration Order 2009 considered)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ali & 2 others v Boit & another", Case Analysis (2022). Environment & Land Case 200 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/4778/eng@2022-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.