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ELCDismissedELC Mombasa (Chamber Summons dated 23rd May 2025; Notices of Motion dated 23rd May 2025, 29th May 2025 and 3rd June 2025)· [2025] KEELC 8605 (KLR)

Mathenge & another v Belle Holdings Limited & 2 others (Environment and Land Case 74 of 2021) [2025] KEELC 8605 (KLR)

Environment and Land Court
10 December 2025
1,986 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Mombasa court dismissed all four attempts to overturn a taxed costs bill, because the plaintiffs ignored deadlines, skipped taxation, and challenged a ruling that didn't exist as described.

What this practically means

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Executive summary

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The plaintiffs filed four applications — a chamber summons dated 23rd May 2025 and notices of motion dated 23rd May 2025, 29th May 2025 and 3rd June 2025 — seeking stay of execution of a taxation ruling, setting aside of that ruling, re-assessment of the party-to-party bill of costs, extension of time to lodge a notice of objection to the taxing officer, and costs. The applications were anchored on claims that they were never served with the bill of costs or notice of taxation, that instruction fees were excessive, and that execution was being levied for a sum exceeding the taxed amount. The defendants opposed, producing affidavits of service and noting that stay had already been granted conditionally on deposit of the taxed costs. The court consolidated all four applications for determination and framed three issues: entitlement to stay of execution pending reference or appeal, whether a reasonable basis for extension of time existed, and costs. The court found service was proved; the plaintiffs' denial of the email address used for service was contradicted by their own advocates' letterhead, and submissions could not introduce evidence. The taxation ruling was in fact dated 7th and delivered on 9th April 2025, not 10th April 2025, and no ruling of 30th May 2025 subject to the intended appeal existed on record. The taxing master's reasoning in reducing instruction fees and taxing off VAT was found sound. The plaintiffs failed to lodge a notice of objection within fourteen days under paragraph 11 of the Advocates (Remuneration) Order, 2014, and gave no reasonable explanation for the delay. All four applications were dismissed with costs to the defendants under section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the plaintiffs were served with the bill of costs and notice of taxation

Holding

Service was proved by affidavits of service, and the plaintiffs' claim that the email used did not belong to them was disproved by their own letterhead

Reasoning

The defendants annexed affidavits of service sworn by a process server confirming physical service. The plaintiffs disputed the email used for service only through submissions, which the court held cannot tender evidence. Perusal of the plaintiffs' advocates' own letter showed the disputed email address among their contacts, rendering the denial untrue.

p. 3
02

Whether extension of time to file a notice of objection was warranted

Holding

Extension refused; no notice of objection was filed within fourteen days and no reasonable explanation for delay was given

Reasoning

Having failed to attend taxation despite service, the plaintiffs could not ground an extension application. The multiplicity of applications seeking similar prayers compounded costs and delay. Prosecuting a reference before extension of time was granted was irregular.

p. 4
03

Whether the taxation ruling could be faulted

Holding

The taxing master properly taxed off Kshs.502,126.56 from the claim of Kshs.1,168,184.96, leaving Kshs.666,058.40; no error disclosed

Reasoning

The taxing master gave reasons for reducing instruction fees on a liquidated claim of Kshs.32,382,525 and taxed off the VAT item; other items were drawn to scale. The ruling was dated 7th and delivered 9th April 2025, not 10th April 2025 as alleged, so the court could not act against a non-existent ruling.

p. 4
04

Whether stay of execution pending appeal against the decision of 30th May 2025 should issue

Holding

Application failed as no ruling dated or delivered on 30th May 2025 and no Notice of Appeal was on record

Reasoning

Perusal of the record revealed no ruling of 30th May 2025 and no Notice of Appeal in respect of it; therefore the foundational basis for a stay pending intended appeal was not established.

p. 4

Legal principles established

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  • Submissions are an address from the bar and cannot be a medium through which evidential materials are presented to the court; affidavit evidence must be rebutted by further or supplementary affidavit
  • A court cannot issue orders against a non-existent ruling or decision
  • Costs follow the event under section 27 of the Civil Procedure Act unless the court directs otherwise for good cause

Court orders

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  1. 1.The plaintiffs' chamber summons and three notices of motion are dismissed
  2. 2.The plaintiffs to bear the defendants' costs in the four applications

Authorities

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Legislation

  • Civil Procedure Actsection 27
  • Advocates (Remuneration) Orderparagraph 11
Jurisdiction invoked
Inherent jurisdiction of the court and section 27 of the Civil Procedure Act (Cap. 21); applications under paragraph 11 of the Advocates (Remuneration) Order, 2014

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, "Mathenge & another v Belle Holdings Limited & 2 others (Environment and Land Case 74 of 2021) [2025] KEELC 8605 (KLR)", Case Analysis (2025). ELC Mombasa (Chamber Summons dated 23rd May 2025; Notices of Motion dated 23rd May 2025, 29th May 2025 and 3rd June 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8605/eng@2025-12-10

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