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ELCStruck OutNot stated in judgment (ELC Mombasa)· [2024] KEELC 7465 (KLR)

Mulela v Fort Properties Limited (Environment & Land Case 162 of 2015) [2024] KEELC 7465 (KLR)

Environment and Land Court
13 November 2024
SKS. M. Kibunja
1,059 words in judgment
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The bottom line

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A Kenyan court struck out a bid to challenge a taxation ruling because it was filed before the judge, not the taxing master who made it.

What this practically means

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Executive summary

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The defendant filed a notice of motion dated 5th September 2024 seeking stay of execution of a taxation ruling delivered on 3rd July 2024 by Hon. Nyariki and of warrants of attachment issued on 23rd August 2024, together with review, variation or setting aside of that ruling, which had held that the plaintiff's party and party bill of costs dated 20th November 2023 (taxed at Kshs. 329,025) was unopposed. The defendant, through the affidavit of Suleiman Yawa, argued that its written submissions of 19th June 2024 were not considered and that it would suffer irreparably if execution proceeded. The plaintiff opposed, conceding that the 'unopposed' finding was a typographical error but contending no reference had been filed and the application should be dismissed with costs. The court framed three issues: the proper forum, whether a reasonable case was made, and costs. It held that the review prayers fell under Order 45 of the Civil Procedure Rules and had to be made before the taxing master who made the order, Hon. J. Nyariki, or another suitable taxing master where circumstances warranted; the defendant had filed no objection or reference against the taxation ruling. The court therefore found its jurisdiction improperly invoked, struck out the notice of motion with costs to the plaintiff, and ordered accordingly on 13th November 2024.

Key legal issues

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01

Whether the court or the taxing master had jurisdiction over the application

Holding

Prayers for review had to be placed before the taxing master who delivered the taxation ruling, not this court.

Reasoning

Order 45 rule 2(1) requires review applications, other than on new matter or clerical error grounds, to be made to the judge who passed the decree or made the order. The taxation ruling under challenge was made by Hon. J. Nyariki, not the present judge. There was also no reference or appeal against the taxation ruling. The court therefore lacked properly invoked jurisdiction.

p. 2
02

Whether the defendant made a reasonable case for the orders sought

Holding

The application failed on jurisdiction and was struck out with costs.

Reasoning

The defendant argued the taxing master wrongly found the bill unopposed despite filing written submissions. The plaintiff conceded the finding was an error, attributable to a typographical mistake, but contended no reference had been filed. The court found the forum objection fatal and did not reach the merits of the review grounds.

p. 3

Legal principles established

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  • An application for review of a decree or order, other than on grounds of new matter or clerical error, must be made to the judge (or taxing master) who passed the decree or made the order.
  • A review of a taxation ruling must be filed before the taxing master who made it, and this court is the wrong forum where its jurisdiction is not properly invoked.

Court orders

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  1. 1.The defendant's notice of motion dated the 5th September 2024 is struck out with costs.
  2. 2.Costs of the application awarded to the plaintiff.

Authorities

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Legislation

  • Civil Procedure ActSection 1
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 95
  • Civil Procedure ActSection 99
  • Civil Procedure RulesOrder 45
  • Civil Procedure RulesOrder 50
  • Civil Procedure RulesOrder 51
  • Civil Procedure RulesOrder 22 Rule 22
Jurisdiction invoked
Sections 1, 1A, 1B, 3, 3A, 80, 95 & 99 of the Civil Procedure Act and Orders 45, 50, 51 & 22 Rule 22 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, "Mulela v Fort Properties Limited (Environment & Land Case 162 of 2015) [2024] KEELC 7465 (KLR)", Case Analysis (2024). Not stated in judgment (ELC Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7465/eng@2024-11-13

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