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ELCStruck OutNarok MCELC E036 of 2024 (Appeal)· [2025] KEELC 8639 (KLR)

Momposhi (Suing as legal representative of the Estate of Simintei Momposhi - Deceased) v Ronko & 2 others (Environment and Land Appeal E007 of 2025) [2025] KEELC 8639 (KLR)

Environment and Land Court
10 December 2025
2,825 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out an entire land appeal because the litigant used the wrong procedure to challenge a magistrate's award of legal costs.

What this practically means

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Executive summary

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The Appellant appealed against a Ruling delivered on 10th April 2025 in Narok MCELC E036 of 2024, in which the trial court taxed bills of costs at Kshs 989,700 for the 1st and 2nd Defendants and Kshs 1,580,000 for the 3rd Defendant, following the Appellant's withdrawal of a land suit over parcel Cis Mara/Olkinyei/815. The Appellant also sought a stay of execution of a Proclamation Notice by Indomitable Auctioneers. The 3rd Respondent/Objector filed a Preliminary Objection contending that the Appeal was incompetent because the Appellant had failed to invoke Rule 11 of the Advocates Remuneration Order (notice of objection, request for reasons and a reference by chamber summons within 14 days), rendering the appeal a nullity, time barred, and liable to be struck out. The Appellant countered that the impugned decision was an assessment of costs by a magistrate in a subordinate court, not a taxation by a taxing officer under Rule 10, so Rule 11 did not apply. The court, applying Mukisa Biscuits, upheld the objection as a pure point of law but found it unmerited on its stated grounds: subordinate court costs are assessed, not taxed, and challenges lie not by Reference under Rule 11 but by Miscellaneous Application invoking the superior court's supervisory or inherent powers under Section 27 of the Civil Procedure Act. However, since the Appellant had invoked the wrong procedure by filing an appeal, the court struck out the entire appeal with costs to the 3rd Respondent and vacated the status quo orders issued on 24th June 2025.

Key legal issues

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01

Whether the Preliminary Objection premised on Rule 11 of the Advocates Remuneration Order was merited

Holding

The Preliminary Objection was not upheld because the impugned decision was an assessment of costs by a magistrate in a subordinate court, not a taxation by a taxing officer; Rule 11 and a 'Reference' did not apply

Reasoning

The court distinguished assessment from taxation: subordinate court costs are assessed by a magistrate under Schedule 7 of the Advocates Remuneration Order, whereas High Court costs are taxed by a taxing officer under Schedule 6. A magistrate acts as a judicial officer, not a taxing officer, so a challenge to assessment is not a Reference under Rule 11. The proper channel is a Miscellaneous Application invoking the superior court's supervisory or inherent powers.

p. 6
02

Whether the Appellant invoked the correct procedure

Holding

The Appellant invoked the wrong procedure by filing an Appeal; the Appeal is fatally defective and incompetent and was struck out

Reasoning

Although the Preliminary Objection cited the wrong rule, the court found independently that a challenge to a magistrate's assessment of costs must be lodged as a Miscellaneous Civil Application to the supervising superior court, not a formal appeal. The Appellant filed a Memorandum of Appeal instead, rendering the appeal incompetent and liable to be struck out.

p. 6

Legal principles established

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  • A challenge to a magistrate's assessment of costs in a subordinate court does not lie under Rule 11 of the Advocates Remuneration Order as a Reference, but through the superior court's supervisory/inherent powers under Section 27 of the Civil Procedure Act, by way of Miscellaneous Civil Application

Court orders

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  1. 1.The 3rd Respondent's Preliminary Objection dated 23rd June 2025 is not upheld
  2. 2.The Appeal is struck out entirely with costs to the 3rd Respondent
  3. 3.The status quo order issued earlier on 24th June 2025 is vacated
On appeal from
Magistrates' Court (Narok MCELC E036 of 2024)
Narok MCELC E036 of 2024
Jurisdiction invoked
Appellate and supervisory jurisdiction over subordinate court assessment of costs; Section 27 of the Civil Procedure Act invoked as the proper avenue

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, "Momposhi (Suing as legal representative of the Estate of Simintei Momposhi - Deceased) v Ronko & 2 others (Environment and Land Appeal E007 of 2025) [2025] KEELC 8639 (KLR)", Case Analysis (2025). Narok MCELC E036 of 2024 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8639/eng@2025-12-10

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