Kahia & Company Advocates v Nzioka (Environment and Land Miscellaneous Case E034 of 2023) [2025] KEELC 18323 (KLR) (11 December 2025) (Ruling) Neutral citation: [2025] KEELC 18323 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAIROBI ENVIRONMENT AND LAND MISCELLANEOUS CASE E034 OF 2023 MN KULLOW, J DECEMBER 11, 2025 BETWEEN KAHIA & COMPANY ADVOCATES .................................................... APPLICANT AND MARGARET WANJIRU NZIOKA .................................................... RESPONDENT RULING 1. The matter coming before the Court is the Respondent’s Notice of Preliminary Objection dated 3rd February 2025 through the rm of Maosa & Company Advocates. The objection is directed at the Applicant’s application dated 23rd October 2024, which the Respondent contends is incurably defective, incompetent, and improperly before this Court. The Respondent urges that the objection raises pure points of law, capable of disposing of the application at the outset, and therefore ought to be heard and determined in limine. 2. In summary, the Respondent asserts that the application has been led in a forum without jurisdiction, noting that on its face it appears to have been intended for ling before the Environment and Land Court at Thika. The Respondent further challenges the validity of the supporting adavit dated 23rd October 2024, arguing that it is incomplete and fatally defective, as the jurat appears on a separate page, contrary to the Oaths and Statutory Declarations Act and established procedural requirements. 3. Additionally, the Respondent impugns the adavit of Faith Kihara dated 29th August 2024, which is annexed to the supporting adavit, on the basis that it was commissioned by an advocate who is allegedly interested in the matter, thereby oending Section 4(1) of the Oaths and Statutory Declarations Act. 4. The Respondent further argues that once a certicate of costs is issued by the Deputy Registrar, the same becomes a decretal sum recoverable only through a separate suit, rendering the present application procedurally incompetent. The Respondent therefore maintains that the Applicant’s application is https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18323/eng@2025-12-11 1
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not only defective but also frivolous and a manifest abuse of the court process, and consequently prays that it be struck out or dismissed with costs. Parties’ Submissions Respondent/Client’s Submission 4. The Respondent submits that the Preliminary Objection dated 3rd February 2025 satises the test set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, as it raises pure points of law capable of disposing of the Applicant’s Notice of Motion. 5. The Respondent reiterates the ve grounds forming the objection: absence of jurisdiction owing to the Notice of Motion citing the ELC at Thika, a fatally defective supporting adavit whose jurat appears on a separate page, an annexed adavit of Faith Kihara allegedly commissioned contrary to s.4(1) of the Oaths and Statutory Declarations Act, the argument that a certicate of costs is a debt enforceable only through a fresh suit, and that the application constitutes an abuse of court process. 6. On jurisdiction, the Respondent contends that the citation on the face of the impugned application refers to a forum dierent from this Court and that the Court should not “second-guess” counsel’s intent. Reliance is placed on Otieno & Another v IEBC & 2 Others (Petition E002 of 2022), where the Court held that it is not the duty of the Court to correct clerical lapses or reconstruct a party’s pleadings. 7. Regarding adavit form, the Respondent maintains that the Applicant’s supporting adavit violates statutory requirements because the jurat is on a separate page, contrary to s.5 of the Oaths and Statutory Declarations Act. The Respondent cites Treadsetters Tyres Ltd v Hussein Dairy Ltd (2002), where an adavit whose jurat appeared on a separate page was struck out. 8. On the adavit of Faith Kihara, the Respondent submits that it is incurably defective because it was commissioned by an advocate with a direct interest in the matter, contrary to s.4(1) of the Oaths and Statutory Declarations Act. The Respondent relies on Lee Njiru v J.K. Lokorio & Another (2019) and James Francis Kariuki & Another v United Insurance Co. Ltd, where adavits commissioned by conicted commissioners were invalidated. 9. The Respondent further submits that the underlying taxation process is tainted, as it allegedly relied on this defective adavit of service, and invites the Court, if necessary, to act suo motu to correct an irregularity in the taxation. Ultimately, the Respondent prays that the Applicant’s Notice of Motion and the impugned adavits be struck out with costs. Applicant/Advocate’s Submissions 10. The Applicant submits that the proceedings relate to an advocate–client bill of costs dated 9th August 2023, which was duly taxed at Kshs 291,065 and a certicate of costs issued on 17th May 2024. Following that taxation, the Applicant led the application dated 23rd October 2024 seeking entry of judgment in accordance with Section 51(2) of the Advocates Act, which makes a certicate of taxation nal as to the amount, unless set aside or altered by the Court. 11. The Applicant contends that this Court is the correct forum because the certicate of costs was issued in this very le, and the legal services rendered relating to Nairobi Block 119/119 were provided in Nairobi. Accordingly, the assertion that the application belongs before the ELC at Thika is said to have no legal or factual basis. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18323/eng@2025-12-11 2
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12. On the adavit-related objections, the Applicant submits that the Respondent's complaints concerning the jurat appearing on a separate page do not render the adavit fatally defective. Counsel argues that such irregularities are curable procedural defects under Article 159(2)(d) of the Constitution and Order 19 Rule 7 of the Civil Procedure Rules, which prohibit rejection of an adavit for a mere formal defect unless prejudice is shown which the Respondent has not demonstrated. With respect to the adavit of Faith Kihara, the Applicant asserts that it is merely an annexure, not a supporting adavit, and that even if any irregularity existed, it would not aect the competency of the main application, which is supported by a proper adavit sworn by the Applicant. 13. The Applicant further submits that enforcement of a certicate of costs does not require ling a fresh suit, as urged by the Respondent. Counsel relies on Section 51(2) to argue that the same court that issued the certicate may enter judgment for the sum certied, provided the retainer is undisputed. 14. The Applicant emphasises that the application is grounded in clear statutory provisions, seeks enforcement of a valid certicate of taxation, and is neither frivolous nor an abuse of process. The Applicant urges the Court to reject what it terms the Respondent’s dilatory tactics, dismiss the Preliminary Objection, and grant the prayers in the application to enable the advocate to realise the fruits of taxation. Issue For Determination 15. The sole issue is whether the Preliminary Objection is merited. Analysis And Determination 16. I have carefully considered the Preliminary Objection, the rival submissions, and the record. A proper preliminary objection must, as stated in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, raise a pure point of law which, if upheld, is capable of disposing of the entire matter without the need to ascertain contested facts. 17. The Respondent’s objection is premised on four broad grounds alleged want of jurisdiction, alleged defects in the supporting adavits, alleged improper commissioning of an annexed adavit, and the argument that a certicate of costs can only be enforced through a fresh suit. 18. Some of these grounds, particularly those relating to the circumstances of commissioning and the status of the annexed adavit, require factual verication, which takes the objection outside the scope of what constitutes a pure point of law. A preliminary objection cannot be sustained where factual issues are intertwined with the points raised. 19. On jurisdiction, the Court notes that the certicate of costs giving rise to the application was issued by this Court in these very proceedings. The Applicant has invoked Section 51(2) of the Advocates Act, which expressly empowers the Court that issued the certicate of taxation to enter judgment thereon unless it has been set aside or altered. 20. The mere indication on the face of the impugned application suggesting ling at Thika does not, in itself, divest this Court of jurisdiction where the substantive proceedings, the taxation, and the certicate all emanated from this Court. 21. On the adavit-related objections, the alleged placement of the jurat and the commissioning of an annexure, even if irregular, are procedural issues curable under established law and cannot, without more, invalidate the entire application at a preliminary stage. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18323/eng@2025-12-11 3
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22. The Respondent has not demonstrated prejudice arising from these alleged defects. Regarding enforcement of the certicate of costs, Section 51(2) does not mandate ling of a fresh suit, and Kenyan courts have consistently enforced certicates within the existing cause. In the result, none of the grounds raised meet the threshold of a proper preliminary objection capable of disposing of the matter. The objection is therefore without merit. Final Orders 23. In view of the foregoing analysis, the Court nds that the Preliminary Objection dated 3rd February 2025 is devoid of merit. The issues raised therein either do not constitute pure points of law, are curable procedural irregularities, or are inconsistent with the express provisions of Section 51(2) of the Advocates Act. Accordingly, the Preliminary Objection is hereby dismissed. 24. The application dated 23rd October 2024 shall therefore proceed to be heard and determined on its merits. The costs of the Preliminary Objection shall be borne by the Respondent. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON 11TH DAY OF DECEMBER, 2025. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: N/A for the Applicant Mr. Maosa H/B for Otieno for the Respondent Philomena W. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18323/eng@2025-12-11 4
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