Ewins v Abdalla (Environment and Land Case 109 of 2018) [2026] KEELC 3320 (KLR) (22 April 2026) (Ruling) Neutral citation: [2026] KEELC 3320 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MALINDI ENVIRONMENT AND LAND CASE 109 OF 2018 FM NJOROGE, J APRIL 22, 2026 BETWEEN ELIZABETH MUENI EWINS ................................................................... PLAINTIFF AND WANJIRU YUSUF ABDALLA .............................................................. DEFENDANT RULING 1. The Notice of Motion dated 7th August 2025 is seeking an order that the court be pleased to convert the Certificate of Taxation dated 29th July 2024 issued on 5th August 2024 into a decree and judgment and that the cost of the application be awarded to the applicant. It is stated that a Certificate of Taxation has not been set aside or altered and the respondent has failed to settle the said and amount and there is need to adopt a certificate of taxation into a decree or judgment to facilitate its enforcement. In brief the application is seeking that judgment be entered in the applicant’s favour in respect of costs as per the law. 2. Grounds of opposition were filed against the application by the defendant/ respondent which can be congealed into the following four grounds: a. Adoption is not automatic and involves judicial discretion which must be exercised judiciously and not mechanically according to Section 51(2) of the Advocates Act; b. Evidence of refusal to settle the amount has not been demonstrated and Section 51(2) should not be invoked prematurely as it is not a punitive provision, and the court ought to prevent abuse of its process whereas no resistance has been demonstrated; c. The defendant has at all material times intended to settle the taxed costs and the application is premature and disproportionate and calculated to exert undue pressure; https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3320/eng@2026-04-22 1
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d. 3. The application is ofiensive to the spirit and intent of Article 159 of the Constitution of Kenya 2010 read together with Sections 1A and 1B of the Civil Procedure Act in that it promotes and unnecessary escalation and multiplicity of proceedings instead of facilitating expeditious proportionate and substantive justice. The applicant filed submissions dated 6th February 2026 while the respondent had earlier on filed submissions dated 17th December 2025. Analysis And Determination 4. The respondent does not seek to dispute the validity of the Certificate Of Taxation. She says that expressly in her submissions. In her submission she identifies the issues for determination as follows: a. Whether the entry of judgment under Section 51(2) of the Advocates Act is automatic or discretionary; b. Whether the applicant has satisfied the legal and evidentiary threshold for the court to exercise its discretion in her favour; c. Whether the application is premature, oppressive and an abuse of the court process. 5. I have perused the court record herein and noted that Notice Show Cause why execution should not issue under Order 22 Rule 18 CPR was issued on 11th October 2024. That is quite long ago. Afidavit of Speciancy Achieng Agwingi, Process Server, dated 30th October 2024 shows that the Notice to Show Cause was served on the respondent 30th April 2025, also a long time ago, and indeed the defendant does not dispute that service by way of a sworn afidavit. The defendant does not also otherwise indicate why she has not paid, for example whether it is due to pecuniary handicaps or any other problems that have resulted to the delay in payment. 6. It is the view of this court that factors must be present that facilitate the exercise of discretion by a court even when a law provides for such discretion, otherwise its exercise of discretion would be considered as arbitrary and/or capricious. 7. In this case, it was incumbent upon the respondent to provide evidence upon which discretion of the court could be exercised. Discretion without relevant facts in judicial matters is like a fish asked to climb a tree. It is puzzled as to how. It works best among facts and advanced reasons. Disclosure of circumstances or reasons for non-settlement of the sum claimed in the certificate of taxed costs would have afiorded the court some room for its exercise of discretion but none have been disclosed. 8. Consequently, there being no relevant matters to consider in respect of the defence in this case, as much as I agree that entry of judgment under Section 51(2) is not automatic, this court lacks material upon which to exercise its discretion in the defendant’s favour and the application dated 7/8/2025 should therefore succeed. 9. They upshot of the foregoing is that the application dated 7th August 2025 has merit and the same is allowed in terms of prayer number 1 thereof. Each party shall bear their own costs of the application. DATED, SIGNED AND DELIVERED AT MALINDI ON THIS 22ND DAY OF APRIL, 2026. MWANGI NJOROGE, JUDGE, ELC, MALINDI. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3320/eng@2026-04-22 2
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