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

iv. costs. The application is based on the twelve (12) grounds on its face marked (a) to (l), and supported by the afidavit of Dominic Mureithi Mathenge, the 1st plaintifi, sworn on the 23rd May 2025, inter alia deposing that they were denied their constitutional right to defend themselves as the bill of costs was taxed on 10th April 2025 at Kshs. 666,058 without establishing that they had been served with the bill of costs or notice of taxation; that the deputy registrar erred in allowing instruction fees at Kshs.855,301 that was excessive, and in allowing the various items listed without supporting documents being availed; and that Ndutumi Auctioneers will proceed with the sale of the proclaimed goods unless stay order is granted. 2. The notices of motion dated 23rd May 2025, and 29th May 2025, have similar prayers (1) to (3) to those in the chamber summons dated 23rd May 2025. The two applications have an additional prayer (4), in which the plaintifis seeks for the court “to extend the period for the issuance by the applicant of the notice of objection to the taxing oficer Hon. Christopher L. Yalwala.” The applications are based on the eleven (11) grounds on their face marked (a) to (k) and supported by the afidavit of Dominic Mureithi Mathenge, the 1st defendant, sworn on the 23rd May 2025 and 29th May 2025 respectively. The depositions are more or less similar to those in the afidavit in support of the chamber summons, with additional depositions inter alia that, the plaintifis were aggrieved by the taxation ruling, and wishes to file an appeal on the ground that: a. they had not been served with the bill of costs; b. the taxation was done under the wrong provisions of the Advocate Remuneration Order; and c. the respondent was executing for Kshs.1,286,424.42 as opposed to the amount assessed after taxation of Kshs.666,058. 3. Vide the notice of motion dated 3rd June 2025, the plaintifis seek for stay of execution pending an intended appeal on the decision of Hon. Noelyne Reuben delivered by the deputy registrar on 30th May 2025. The application is based on the seven (7) grounds on its face marked (1) to (7) and supported by the afidavit of Dominic Mureithi Mathenge, 1st plaintifi, sworn on the 3rd June 2025, deposing inter alia that they had filed an application for stay of execution under certificate dated 23rd May 2025 that was fixed for hearing on 29th May 2025; that the hearing did not take place as Hon. Yalwala, the Deputy Registrar, was away on compassionate leave; that they filed another application for stay of execution under certificate of urgency dated 29th May 2025 which Hon. Noelyne Reuben certified urgent on 30th May 2025, but did not fix a date for its hearing; that the plaintifis are aggrieved by the ruling of 30th May 2025 and wishes to file an appeal; that they were served with warrants of sale of property in execution of money decree dated 5th May 2025, proclamation of attachment dated 22nd May 2025 and Ndutumi Auctioneers will proceed to attach their assets in settlement of Kshs.1,287,924.42 unless stay order are issued. 4. The four applications are opposed by the defendants through the replying afidavit of Twaha Abdulhakim, director with 1st defendant, sworn on 27th June 2025, in which he inter alia deposed that the prayers (1) to (4) are spent as the court has already stay of execution orders dated 5th June 2025; that contrary to the plaintifis were physically served with bill of costs and notice of taxation on 11th February 2025, and that they acknowledged and stamped the documents, as evinced on the afidavit of service; that the plaintifis were also served with ruling notice for 9th April 2025 and an afidavit of service was filed; that upon taxation ruling being delivered on 9th April 2025, the defendants wrote 30th April 2025 to the plaintifis asking for payment of the taxed costs, interests and VAT; that there are no https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8605/eng@2025-12-10 2

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valid reasons given to warrant extension of time to file an appeal or objection as they were aware of the processes leading to the taxation ruling; that the bill of costs was drawn to scale and not having been opposed, the taxing master did not err in awarding the items therein; that the applications are without merit and should be dismissed with costs. 5. The record confirms that while giving directions on the notice of motion dated 3rd June 2025 on the 5th June 2025, the court ordered inter alia that all the four applications filed by the plaintifis be canvassed together to avoid unnecessary delay; that stay of execution was granted pending inter parties hearing on condition the plaintifis deposits the whole taxed costs in an interest earning bank account in the parties advocates’ names, or with the court in ten days. During the subsequent mention on 1st July 2025, the court directed that the applications be canvassed through written submissions and gave timelines for filing and exchanging the same. The learned counsel for the plaintifis and defendants filed their submissions dated 22nd October 2025 and 27th October 2025 respectively, which the court has considered. 6. The issues for the court’s determinations in the chamber summons and three notices of motions are as follows: 7. a. Whether the plaintifis have met the threshold for stay of execution order to issue pending the intended reference and or appeal. b. Whether the plaintifis have made a reasonable gave for extension of time to issue notice of objection to the taxation master. c. Who pays the costs to each of the four applications? The court has carefully considered the grounds on the four applications, afidavit evidence for and against, submissions by the learned counsel, superior court decisions cited thereon, the record and come to the following findings: a. That the main ground on the plaintifis’ applications challenging the taxation ruling of 10th April 2025 is that they were not given an opportunity to be heard as the Bill of Costs and the Notice of Taxation were not served. The defendants have disputed that claim and annexed to their replying afidavit copies of afidavits of service sworn by Boniface M. Joseph confirming service. The plaintifis have through submissions by their learned counsel stated that the email kmkadvocates@gmail.com used by the said process server to efiect service to them was not their email address. It is trite that submissions is an address from the bar, and cannot be a medium through which evidential materials are presented to the court. b. The proper forum of rebutting what is in a replying afidavit is through a further or supplementary afidavit and not submissions. I have perused the copy of the plaintifis’ advocates letter to the defendants’ advocate dated 30th April 2025 that is attached to the replying afidavit and marked “TA 4(b)” and noted among the six emails on the right top corner, below the telephone numbers, is kmkadvocates@gmail.com, and the plaintifis’ counsel’s submission that the email, kmkadvocates@gmail.com, does not belong to them cannot therefore, be true. I am therefore satisfied that the plaintifis were served with the party to party bill of costs and notice of taxation and failed to defend it and or attend court for taxation. I have taken the liberty to peruse the record and the taxation ruling in respect of the bill of costs dated 8th January 2025 is the one dated 7th April 2025 and delivered on 9th April 2025. I have not found any taxation ruling delivered on 10th April 2025 as alleged in the plaintifis’ applications, and the court cannot consider issuing orders against a non-existent taxation ruling. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8605/eng@2025-12-10 3

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8. c. It is clear from the ruling dated 7th April 2025 and delivered on 9th April 2025, the bill of costs had sought for Kshs.1,168,184.96. under item 1 on instruction the taxing master has indicated that the suit property was a liquidated claim of Kshs.32,382,525, and worked out how and why he taxed ofi Kshs.340,997.60 from the Kshs.855,301 sought to allow Kshs.514,303.40 on that item. It is also clear that Kshs.161,128.96 claimed as VAT under item 2 was taxed ofi while the other items were found to have been drawn to scale and allowed. The last paragraph of the taxation ruling leaves no doubts that Kshs.502,126.56 was taxed ofi from the total claim of Kshs.1,168,184.96 leaving the amount allowed or granted after taxation as Kshs.666,058.40. I do not find any reasonable basis to fault the taxing master on his taxation ruling dated 7th April 2025 and delivered on 9th April 2025. d. That in view of the finding above that the respondents had been served with the party to party bill of costs and taxation notice and failed to oppose it or attend court during taxation, then I find they have failed to present any reasonable basis upon which to ground their application for extension of time, to file a notice of objection to the taxing master. They have failed to tender any reasonable explanation on their delay, and the filing of a multiplicity of applications seeking for more or less the same prayers did not help in any way other than resulting to increase in costs and time used. The court therefore finds that the filing of the chamber summons dated 23rd May 2025 did not comply with paragraph 11 of the Advocates (Remuneration) Order, 2014 as no evidence of notice to object was given to the taxing oficer within fourteen days, and the application for extension of time has failed. The attempt by the plaintifis to canvass the merit of a non-existent reference is therefore an attempt to prosecute a reference before extension of time to file the notice of objection and possibly reference thereafter has been dealt with, which is irregular. e. In the notice of motion dated 3rd June 2025, the plaintifis sought for stay of execution pending an intended appeal on the decision of Hon. Noelyne Reuben delivered by the Deputy Registrar on 30th May 2025. I have perused the record and have not seen any ruling delivered or dated 30th May 2025, or any Notice of Appeal in respect of a ruling dated or delivered on 30th May 2025. The plaintifis have therefore failed to establish the basis for an order of stay of execution to issue, and the application fails. f. From the foregoing, I find no merits in the plaintifis four applications listed above. Under section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya, costs follow the event unless where for good cause the court directs difierently. In this instance I find no reason to direct difierently, especially considering the defendants have successfully opposed the applications. The plaintifis will bear the defendants costs. In view of the foregoing conclusions on the four listed applications, the court finds and orders as follows: a. The plaintifis’ chamber summons and three notices of motion are without merit and are dismissed. b. The plaintifis to bear the defendants costs in the four applications. It is so ordered. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 10TH DAY OF DECEMBER 2025. S. M. KIBUNJA, J. ELC MOMBASA. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8605/eng@2025-12-10 4

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In The Presence Of: Plaintifis : M/s Wamaitha Defendants : M/s Julu Kalekye-court Assistant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8605/eng@2025-12-10 5

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