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ELCDismissedNotice of Motion dated 11th March 2024 (suit number not stated in the judgment)· [2024] KEELC 5117 (KLR)

Shariff & 2 others v Kenya Railways Corporation (Environment & Land Case E002 of 2021) [2024] KEELC 5117 (KLR)

Environment and Land Court
4 July 2024
1,217 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Court of Appeal order stopping eviction does not stop a party from collecting court-awarded legal costs, so the applicants had to deposit Kshs 2.46 million to get any stay.

What this practically means

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Executive summary

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The applicants, plaintiffs whose suit against Kenya Railways Corporation had been dismissed with costs, moved the Environment and Land Court at Bungoma by Notice of Motion dated 11th March 2024 seeking a stay of execution of the taxation ruling of the Deputy Registrar, Hon. Getenga, delivered on 7th February 2024, pending a Reference they had filed under the Advocates Remuneration Order and pending Court of Appeal Appeal No. E214 of 2023. They contended that the respondent had clandestinely and irregularly obtained warrants of attachment and proclamation notices against their movable properties in defiance of a Court of Appeal status quo order issued in Civil Application No. E087 of 2023, which they said barred execution. The respondent countered that the consent status quo order only prevented eviction from the suit property and demolition of structures, did not restrict taxation or execution for costs, and that the applicants' advocates fully participated in the taxation, including filing submissions and attending delivery of the ruling. The court, E.C. Cherono, ELC Judge, held that the status quo order did not stay execution of the judgment, decree or costs, that the application was an afterthought, and dismissed the Notice of Motion. However, because a Reference against the taxation was pending, the court issued a consequential stay of execution conditional upon the applicants depositing the taxed costs of Kshs. 2,456,578.70 in court within 14 days, and ordered the applicants to bear the costs of the application. The ruling was delivered at Bungoma on 4th July 2024.

Key legal issues

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01

Effect of the Court of Appeal status quo order on execution for costs

Holding

The status quo order only barred eviction and demolition of structures; it did not restrict taxation and execution for costs

Reasoning

The Court of Appeal's order in Civil Application No. E087 of 2023 was expressly limited to maintaining the status quo by preventing eviction and demolition pending the intended appeal. It contained no stay of the judgment, decree or costs. The applicants themselves participated fully in the taxation without objection, confirming the order's limited scope. Execution on warrants issued after non-settlement of taxed costs was therefore lawful.

p. 3
02

Whether the application was an abuse of process / afterthought

Holding

The application was an afterthought given the applicants' full participation in the taxation

Reasoning

The applicants' advocates filed submissions opposing the bill, attended the entire taxation proceedings and the delivery of the ruling, yet only moved the court after warrants of attachment were issued. The court concluded the application lacked merit, though it granted a conditional stay to preserve the pending Reference under the Advocates Remuneration Order.

p. 3
03

Whether a conditional stay should issue pending the Reference against taxation

Holding

A stay was granted conditional on deposit of the taxed costs in court within 14 days

Reasoning

Because the applicants had filed a Reference under Order 11 of the Advocates Remuneration Order challenging the taxed bill, the court issued a consequential stay of execution conditional upon the applicants depositing the taxed sum of Kshs. 2,456,578.70 in court within 14 days, balancing the pendency of the Reference with the respondent's entitlement to costs.

p. 3

Legal principles established

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  • A Court of Appeal status quo order limited to non-eviction and non-demolition does not stay execution for costs
  • Participation in taxation proceedings without objection precludes a claim that execution was irregularly obtained

Court orders

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  1. 1.The Notice of Motion application dated 11th March 2024 is dismissed as an afterthought and devoid of merit
  2. 2.A stay of execution is issued subject to the Applicant depositing in court the taxed costs of Kshs. 2,456,578.70 within 14 days from the date of the Ruling
  3. 3.The Applicant shall bear the costs of the application

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure Rules, 2010Order 51 rule 1
  • Advocates Remuneration OrderOrder 11

Cases cited (2)

  • Nazmudin Abdulali Shariff & 2 Others v Kenya Railways Corporation
    COACA No. E214 of 2023
  • Civil Application No. E087 of 2023 (Nazmudin Abdulali Shariff & 2 Others v Kenya Railways Corporation)
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act as read with Order 51 rule 1 of the Civil Procedure Rules, 2010

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, "Shariff & 2 others v Kenya Railways Corporation (Environment & Land Case E002 of 2021) [2024] KEELC 5117 (KLR)", Case Analysis (2024). Notice of Motion dated 11th March 2024 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5117/eng@2024-07-04

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