Hassani Mastajabu & another v Chief Land Registrar, Kwale & 3 others

That the 3rd and 4th defendants are unable to execute on the costs as there is no decree and hence this application. 2. The application was served upon counsel for the plaintis, Ms. Marende Ncheza & Co. Advocates on the 24th February 2023 and an adavit of service sworn by Titus Munyao Nyenge led on the 17th March 2023, but no relply has been led. 3. That when the application came up for hearing on the 20th March 2023, only the counsel for the 3rd and 4th defendants attended and sought to have the application taken as unopposed and allowed. The court set it down for ruling today to give it time to peruse the record as the le was coming before the judge for the rst time. The issue for determinations is whether the prayers in the application should be granted as prayed. 4. The court has considered the grounds on the application, adavit evidence, the record and come to the following determinations; 5. a. That the record conrms that the 3rd and 4th defendants moved the court vide their notice of preliminary objection dated the 20th July 2020 seeking to have the suit dismissed for being res judicata. The preliminary objection was opposed by the plainti and after hearing the parties, the court rendered its determination vide the ruling dated the 10th February 2021. The decision of the court is at paragraph 16 of the said ruling that “….this suit is res judicata and the only option that I have is to have the suit dismissed. It is hereby dismissed with costs to the defendants.” b. The record further conrms that the 3rd and 4th defendants led their party to party bill of costs dated the 14th April 2021 for taxation. The learned counsel for the parties were heard by the Deputy Registrar on the bill of costs on the 23rd July 2021 and through the ruling delivered on the 12th August 2021 the bill of costs was taxed at Kshs.334,000 in the absence of both counsel. c. The record conrms that a certicate of costs was subsequently issued on the 23rd June 2022. It is noted that the orders of 10th February 2021 dismissing the suit with costs, and that of 12th August 2021 on taxation of bill of costs did not address the issue of interest or its percentage that has now been sought in the instant application. The court is of the view that amount should attract interest from the date of this ruling. There being no basis established why the interest should be at 14%, the court directs that it be at courts rate. d. That the 3rd and 4th defendants having been successful in their application are hereby awarded costs of the application assessed at Kshs.10,000.[ten thousands]. The 3rd and 4th defendants notice of motion dated the 2nd November 2022 is with merit and the court orders as follows; a. That the certicate of costs dated the 12th August 2021 for Kshs.334,000 [three hundred thirty four thousand] be and is hereby deemed a decree of the court. b. The 3rd and 4th defendants granted costs of the application assessed at Kshs.10,000. [ten thousand]. c. That the said amount to attract interest at the courts rate from the date of this order till payment in full. It is so ordered. DATED AND VIRTUALLY DELIVERED THIS 26TH DAY OF JUNE 2023. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18303/eng@2023-06-26 2

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S. M. KIBUNJA, J. ELC MOMBASA. In The Presence Of; Plaintis : Absent Defendants : Absent Counsel : M/S Umara for the Applicant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18303/eng@2023-06-26 3

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