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ELCAllowedMisc. Application No. E063 of 2021· [2024] KEELC 5340 (KLR)

Mosongo & another v Leiyan & another (Environment and Land Miscellaneous Application E063 of 2021) [2024] KEELC 5340 (KLR)

Environment and Land Court
11 July 2024
2,130 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court converted an unchallenged taxed costs certificate into a judgment of Kshs. 453,513 with 14% annual interest against two defendants.

What this practically means

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Executive summary

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This was a Notice of Motion under Section 51(2) of the Advocates Act and Paragraphs 2, 7, 49 and 52 of the Advocates Remuneration Order in which the plaintiffs, through their advocate Badia A. Fiona, sought entry of judgment on a certificate of taxation dated 28th February 2022 in the sum of Kshs. 453,513, together with interest at 14% per annum from one month after delivery of the bill of costs, plus costs. The party and party bill of costs arising from Kajiado ELC Case No. 525 of 2017 had been taxed by Deputy Registrar Edwin Mulochi, and a certificate issued, but the defendants neither filed a reference nor settled the amount. The 2nd Defendant opposed the application on four grounds: that it was fatally defective for having been filed as a separate suit instead of in the parent suit; that judgment having been entered severally against the defendants, costs could only be recovered severally; that the applicants had not itemised costs as between the defendants; and that the claim for interest was misconceived as it had not been raised in the bill of costs. Justice L. Komingoi dismissed all objections. The numbering error originated at the registry, caused no prejudice, and did not touch the substratum of the application, invoking Article 159(2)(d) and Sections 1A, 1B and 3A of the Civil Procedure Act, applying Anchor Limited v Sports Kenya. Itemisation of costs between defendants was a matter for the execution stage. The unchallenged certificate of taxation was conclusive under Section 51(2) of the Advocates Act, and interest was justified under Paragraph 7 of the Advocates Remuneration Order as compensation for delayed payment. The court entered judgment for Kshs. 453,513, awarded 14% interest per annum from May 2022 until payment in full, and ordered the respondents to bear the costs of the application.

Key legal issues

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01

Whether the application was fatally defective for having been filed as a separate suit instead of under the parent suit

Holding

Not defective; the registry's assignment of a miscellaneous number was not the applicants' fault and caused no prejudice

Reasoning

The application on filing made reference to ELC Case No. 525 of 2017; the miscellaneous number was assigned at the registry, so the error was not the applicants'. The court found no prejudice to the respondents and no effect on the substratum of the application, applying Article 159(2)(d) and Sections 1A, 1B and 3A of the Civil Procedure Act against striking out for mere procedural error.

p. 3
02

Whether costs entered severally could be recovered jointly as sought

Holding

Itemisation of costs between defendants is a matter for execution, not a bar to entry of judgment

Reasoning

While joint and several liability principles govern execution, the court held that itemising costs among defendants is a procedural aspect properly addressed at the execution stage and does not invalidate an application for entry of judgment on a certificate of taxation.

p. 4
03

Whether judgment should be entered for the certified sum of Kshs. 453,513 with 14% interest

Holding

Yes; the certificate of taxation was unchallenged and the respondents failed to settle or file a reference

Reasoning

Under Section 51(2) of the Advocates Act, an unchallenged certificate of taxation is final as to the amount of costs and the court may enter judgment for the sum certified. Paragraph 7 of the Advocates Remuneration Order permits interest at 14% per annum from one month after delivery of the bill where the claim for interest is raised before payment. The respondents neither filed a reference nor settled the amount.

p. 4

Legal principles established

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  • A certificate of taxation is final unless set aside or altered by the Court, and judgment may be entered on it where the retainer is not disputed
  • Procedural errors that do not go to the root of an application should not invalidate substantive justice
  • An unchallenged certificate of costs is conclusive and enforceable; absence of a reference implies finality
  • Interest on taxed costs serves as compensation for delay in payment

Court orders

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  1. 1.Judgment entered against the respondents in favour of the applicant for Kshs. 453,513 as contained in the certificate of taxation dated 28th February 2022
  2. 2.Interest at the rate of 14% per annum on the certified costs from May 2022 until payment in full
  3. 3.Costs of the application borne by the Respondents

Authorities

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Legislation

  • Advocates ActSection 51(2)
  • Advocates Remuneration OrderParagraphs 2, 7, 49 and 52
  • Civil Procedure RulesOrder 51
  • Civil Procedure ActSections 1A, 1B and 3A
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (12)

  • Gabriel Osimbo vs Chrispinus Mandare
    [2020] eKLR
  • Abok James Odera T/A A.J. Odera Associates vs John Patrick Machira T/A Machira & Co. Advocates
    [2013] eKLR
  • Abdirahman Abdi v Safi Petroleum Products Ltd & 6 others
    [2011] eKLR
  • Ndung'u Githula & Co. Advocates v Geoffrey Moriaso Ole Mailoy
    [2019] eKLR
  • Republic v City Council of Nairobi; Ivyland Park Ltd (Interested Party) Ex parte Inderpal Singh & 2 others Suing as Officials of Convent Drive South Residents' Association
    [2021] eKLR
  • Amondi & Co Advocates v County Government of Kisumu
    [2021] eKLR
  • Nyaundi Tuiyott & Co Advocates v African Marchant Assurance
    [2018] eKLR
  • Moses Mwicigi & 14 others vs Independent Electoral and Boundaries Commission & 5 others
    [2016] eKLR
  • Republic vs PS in charge of Internal security exparte Joshua Mutua Paul
    (2013) eKLR / [2016] eKLR
  • African Planning and Design Consultants vs Sololo Outlets Ltd & another
    [2018] eKLR
  • Anchor Limited v Sports Kenya
    [2017] eKLR
  • Ndungu Githuka and Company Advocates v Geoffrey Moriaso Ole Mailoy
    [2019] eKLR
Jurisdiction invoked
Section 51(2) of the Advocates Act, Paragraphs 2, 7, 49 and 52 of the Advocates Remuneration Order and Order 51 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, "Mosongo & another v Leiyan & another (Environment and Land Miscellaneous Application E063 of 2021) [2024] KEELC 5340 (KLR)", Case Analysis (2024). Misc. Application No. E063 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5340/eng@2024-07-11

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