Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in judgment (Miscellaneous Application dated 3rd January 2024)· [2024] KEELC 4691 (KLR)

Wakf Commissioners of Kenya v (Respondent) - Application for Stay of Execution of Certificate of Costs

Environment and Land Court
12 June 2024
1,818 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan court blocked execution of a Kshs 2.7 million taxed costs certificate, confirming a chamber summons is a valid reference even without fresh reasons from the taxing officer.

What this practically means

#

Executive summary

#
The applicant moved the Environment and Land Court at Mombasa by an application dated 3rd January 2024 under Section 1A and 3, 4 of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules and Article 159 of the Constitution, seeking stay of execution of a Certificate of Costs issued on 6th December 2023 by Deputy Registrar Hon. J.M Nyariki, who had taxed the respondent's party and party bill of costs at Kshs 2,686,981.76. The applicant also filed a reference challenging that ruling, to which the respondent raised a preliminary objection contending the application was misconceived, was not a valid reference under Rule 11 of the Advocate Remuneration Order, and was filed out of time without the taxing master's reasons having been requested. The court first dismissed the preliminary objection, holding that its grounds raised contested facts rather than pure points of law as required by Mukhisa Biscuit. On validity of the reference, the court held Rule 11 requires the objection to be brought by chamber summons, which had been done, and relying on Kobil Petroleum held that further reasons need not be sought where the taxing officer has given a reasoned ruling, consistent with Article 159(2)(d) against procedural technicalities. On stay, although doubting substantial loss given the low value of proclaimed property, the court accepted that execution of the sum, which comprised monies held for management costs of wakf property, could paralyze the applicant's operations. The application was accordingly allowed with no orders as to costs. Delivered at Mombasa on 12th June 2024 by N.A. Matheka J.

Key legal issues

#
01

Whether the chamber summons dated 3rd January 2024 constitutes a valid reference under Rule 11 of the Advocate Remuneration Order

Holding

It is a valid reference; Rule 11 requires the objection to be filed by chamber summons, and the orders sought show it challenges the taxing master's ruling

Reasoning

Rule 11(2) provides that an objector may apply by chamber summons setting out the grounds of objection. The court found the rule clear and noted that the prayers in the chamber summons sought to review, vary and set aside the taxing master's ruling of 6th December 2023, and in the alternative remittal for taxation before another taxing officer. The objection that reasons had not been given was overcome by the principle in Kobil Petroleum that further reasons need not be sought where a reasoned ruling exists, read with Article 159(2)(d) against procedural technicalities.

p. 3
02

Whether the notice of preliminary objection should be upheld

Holding

Dismissed because the grounds relied on contested facts rather than pure points of law

Reasoning

Applying Mukhisa Biscuit, a preliminary objection must be a pure point of law. The court found the grounds raised contested facts, which were also raised in the stay application, so the objection could not stand and was dismissed to allow the reference to proceed.

p. 2
03

Whether the applicant satisfied the conditions for stay of execution under Order 42 Rule 6

Holding

Stay granted; execution of the decretal amount could paralyze the applicant's day-to-day operations

Reasoning

Order 42 Rule 6(2) requires substantial loss, absence of unreasonable delay and security. The court doubted substantial loss on the value of proclaimed property, but accepted that the sum of about Kshs 2.7 million, being monies held for management costs of charitable wakf property, could paralyze the applicant's daily running if executed, and the application was filed within the statutory period.

p. 4

Legal principles established

#
  • A notice of preliminary objection founded on contested facts is not a pure point of law and will fail
  • Where a taxing officer has given a reasoned ruling, further reasons need not be sought before lodging a reference

Court orders

#
  1. 1.The notice of preliminary objection is dismissed
  2. 2.Stay of execution of the Certificate of Costs dated 6th December 2023 granted pending hearing and determination of the reference
  3. 3.No orders as to costs

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 3 and 4
  • Civil Procedure RulesOrder 42 Rule 6(1) and (2); Order 26 Rule 1
  • Constitution of Kenya 2010Article 159(2)(d)
  • Advocate Remuneration OrderRule 11(1), (2), (3) and (4)

Cases cited (7)

  • James Wangalwa & Another vs Agnes Naliaka Cheseto
    (2012) eKLR
  • Molyn Credit Limited vs Odeny Maube & Company, Advocates
    (Miscellaneous Civil Case E024, E025 & E026 OF 2022 (Consolidated)) (2023) KEHC 17220 (KLR) (12 May 2023) (Ruling)
  • Mukhisa Biscuit Manufacturers Ltd. vs West End Distributors Ltd
    (1969) E.A. 696
  • Postal Corporation of Kenya vs Donald Kikorir & 3 others
    (2005) eKLR
  • Machira & Co. Advocates vs Arthur K. Magugu & Another
    Nairobi HCCC No. 358 of 2001 (UR)
  • Mburu Thuku vs Muthanga Thuku
    Nyeri HC. Misc. Application No 87 of 2004
  • Kobil Petroleum Ltd v. Almost Magic Merchant Ltd
    Nairobi HCCC No. 1970 of 2000
Jurisdiction invoked
Sections 1A and 3, 4 of the Civil Procedure Act; Order 42 Rule 6 of the Civil Procedure Rules; Article 159 of the Constitution of Kenya 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Wakf Commissioners of Kenya v (Respondent) - Application for Stay of Execution of Certificate of Costs", Case Analysis (2024). Not stated in judgment (Miscellaneous Application dated 3rd January 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4691/eng@2024-06-12

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