James Mushanki v Mombasa Cement Limited & another

2. The 1st Defendant/Applicant, Mombasa Cement Limited, moved the Court by a Notice of Motion dated 13th March 2026. The Motion is expressed to be brought under Section 27 of the Civil Procedure Act, Order 21 rule 9, Order 51 rule 1 of the Civil Procedure Rules and all other enabling provisions of the law. It seeks the following orders: a) That the application be certified urgent, service be dispensed with, and it be heard ex parte in the first instance. (Spent). b) That the Certificate of Costs dated 17 th February 2026 in the sum of Kshs. 551,400/= be adopted as a judgment of this Court. c) That judgment be entered in favour of the 1st Defendant against the Plaintiff for Kshs. 551,400/=. d) That interest be awarded at the court rate of 14% per annum from the date of taxation until payment in full. RULING: ELCC/E037/2022 Page 2 of 16

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e) That the 1st Defendant be granted leave to execute the resulting judgment or decree against the Plaintiff. f) That the costs of the application be provided for. 3. The Motion is supported by the affidavit of Terence Omondi Oduor sworn on 13th March 2026. He depones that the 1st Defendant’s party-and-party Bill of Costs was taxed on 28th January 2026 at Kshs. 551,400/=; that the Certificate of Costs was issued on 17th February 2026; that a demand for payment was made; and that no reference, review, settingaside order or stay has displaced the certificate. 4. The Plaintiff responded through a Notice of Preliminary Objection dated 27th July 2026. The objection asserts that the Motion is incurably defective; that it was filed without the 1st Defendant’s corporate authority; that Terence Omondi is not a director and has no company resolution authorising him to represent the company; that Shabaan Associates LLP lacks authority to act without a valid resolution; and that the Plaintiff filed a Notice of Appeal dated 24th RULING: ELCC/E037/2022 December Page 3 of 16

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2024. On those grounds, the Plaintiff asks that the Motion be dismissed with costs. 5. The Court directed that the Motion and the Preliminary Objection be canvassed by written submissions. None had been filed when this Ruling was prepared. The Court must therefore decide the matter upon the Motion, the affidavit, the objection and the record. Issues for Determination 6. Having considered the record, the following issues arise for determination: (a) Whether the Notice of Preliminary Objection is competent and meritorious; (b) Whether the Notice of Appeal bars adoption or enforcement of the Certificate of Costs; (c) Whether judgment should be entered upon the Certificate of Costs and, if so, the applicable interest; and (d) Who should bear the costs of the Motion and the Preliminary Objection. RULING: ELCC/E037/2022 Page 4 of 16

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Issue One: Whether the Preliminary Objection is competent and meritorious 7. A preliminary objection is a legal scalpel. It isolates a pure point of law which, upon the assumption that the opposing party’s pleaded facts are correct, may dispose of the matter without evidence or the exercise of judicial discretion. It is not a vessel into which disputed facts may be poured and decided summarily. 8. The governing principle was stated in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. The Supreme Court affirmed the same test in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others [2014] eKLR and Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others [2015] eKLR: a proper preliminary objection must arise from the pleadings, present a pure point of law and be capable of determination without fact-finding. Where evidence is necessary, the point must be tried in the ordinary manner. RULING: ELCC/E037/2022 Page 5 of 16

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9. Measured against that standard, the first ground—stating that the Motion is incurably defective, incompetent and bad in law—is merely a conclusion. It identifies neither the legal defect nor the statutory provision allegedly offended. A preliminary objection must disclose its legal foundation with enough precision to inform the opposite party and the Court of the dispositive point. A general denunciation cannot substitute for a point of law. 10. The second ground contests Terence Omondi’s authority to swear the supporting affidavit. The third contests the authority of Shabaan Associates LLP to represent the company. Each calls for answers to factual questions: who instructed counsel; what position the deponent held; what authority was conferred; whether the company adopted or ratified the proceedings; and whether the person challenging that authority has any evidence of repudiation by the company. Those are not self-proving propositions of law. 11. There is also substantive authority against the Plaintiff’s position. In Makupa Transit Shade Limited & another v RULING: ELCC/E037/2022 Page 6 of 16

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Kenya Ports Authority & another [2015] eKLR, the Court of Appeal held that an affidavit on behalf of a corporation may be sworn by a person who states that he or she is authorised and has knowledge of the facts; the law does not invariably require the written authority to be exhibited with the affidavit. In Mathu & 22 others v Inkom Investment Limited & 2 others [2023] KEELC 19275 (KLR), the Environment and Land Court, upon reviewing the appellate authorities, similarly held that absence of an exhibited board resolution does not, without more, render proceedings incompetent. 12. Here, the 1st Defendant is already a litigant on record and the Motion seeks enforcement of costs awarded in its favour. Nothing before the Court shows that the company has disowned the deponent, the Motion or its advocates. The Plaintiff asks the Court to infer want of authority from the absence of an exhibited resolution. That inference would require evidence and fact-finding—the very exercise excluded from a true preliminary objection. RULING: ELCC/E037/2022 Page 7 of 16

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13. I therefore find that the first, second and third grounds do not meet the Mukisa Biscuit threshold. They are either impermissibly vague or dependent upon disputed facts. To that extent, the Preliminary Objection is incompetent and unmeritorious. Issue Two: Whether the Notice of Appeal bars adoption or enforcement 14. The fourth ground rests upon the Notice of Appeal dated 24th December 2024. It is necessary to distinguish an appeal from a stay. An appeal invokes appellate jurisdiction; a stay restrains enforcement. The first does not automatically produce the second. 15. Order 42 rule 6(1) of the Civil Procedure Rules states that no appeal or second appeal shall operate as a stay of execution or proceedings under the decree or order appealed from, except to the extent that the court appealed from may order. A party who seeks suspension of enforcement must apply for and obtain a stay upon the conditions prescribed by law. RULING: ELCC/E037/2022 Page 8 of 16

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16. No order staying the judgment, the costs order, taxation or execution of the Certificate has been placed before this Court. The Notice of Appeal preserves the Plaintiff’s right to pursue appellate relief, but it does not sterilise the decree or suspend the 1st Defendant’s accrued right to costs. Were the Court to treat the notice alone as a stay, it would grant by implication an order which the law requires to be expressly sought and judicially justified. 17. Accordingly, the Notice of Appeal does not bar adoption or enforcement of the Certificate of Costs. The fourth ground of the Preliminary Objection also fails. Issue Three: Whether judgment should be entered and the applicable interest 18. The record is straightforward. The party-and-party Bill of Costs was taxed on 28th January 2026. A Certificate of Costs dated 17th February 2026 certified Kshs. 551,400/=. No reference has been lodged, no review has been allowed, and no order has set aside, varied or stayed that certificate. The certified amount therefore remains regular, final and due. RULING: ELCC/E037/2022 Page 9 of 16

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19. Section 51(2) of the Advocates Act expressly recognises the finality of a taxing officer’s certificate, unless set aside or altered, in the context of recovery of taxed advocates’ costs. The present certificate concerns party-and-party costs and is enforced within the original suit under the Court’s costs jurisdiction in section 27 of the Civil Procedure Act. Even so, the underlying principle is the same: a certificate that has not been successfully challenged settles the quantum certified. In Kenya Airports Authority v Otieno, Ragot & Company Advocates, Supreme Court Petition No. E011 of 2023, judgment delivered on 2nd August 2024, the Supreme Court underscored the statutory finality attaching to a certificate of costs that remains unaltered. 20. The Court is not sitting on appeal from the taxing officer. Nor has the Plaintiff placed before it any lawful basis for withholding enforcement. Adoption of the certificate does not create a new liability; it gives executable form to the costs liability already awarded and quantified. Judgment should therefore be entered for Kshs. 551,400/=. RULING: ELCC/E037/2022 Page 10 of 16

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21. A numerical correction is necessary. The researcher’s draft concluded with judgment for Kshs. 522,448/=, although the Motion, taxation and Certificate consistently state Kshs. 551,400/=. The former figure has no support in the record. A judgment founded on a certificate must correspond exactly with the amount certified. The proper decretal amount is Kshs. 551,400/=. 22. The remaining question is interest. The Applicant seeks 14% per annum from the date of taxation. Rule 7 of the Advocates (Remuneration) Order permits an advocate to charge a client interest on disbursements and costs after the prescribed period following delivery of the advocate’s bill. It regulates the advocate-client relationship. This is a party-and-party certificate between litigants; rule 7 is therefore not the proper source of the interest claimed. 23. The applicable provision is section 27(2) of the Civil Procedure Act. It authorises the Court to award interest on costs at any rate not exceeding 14% per annum, to be added to the costs and recovered as such. The Court of Appeal in RULING: ELCC/E037/2022 Page 11 of 16

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Kenya Ports Authority Pension Scheme & 8 others v Kinyua Muyaa & Co. Advocates [2022] KECA 578 (KLR) distinguished interest claimed by an advocate under rule 7 from interest awarded by a court after judgment on taxed costs. Kipchumba v Board of Governors, Tambach Teachers Training College [2023] KECA 802 (KLR) likewise recognised section 27(2) as the governing provision for interest on costs. 24. The amount became certain upon taxation on 28th January 2026. From that date, the Plaintiff knew, or was deemed to know, the quantified costs liability. Interest is compensatory: it prevents the judgment creditor from bearing the financial consequence of being kept out of an ascertained award. In the circumstances, an award at 14% per annum from 28th January 2026 is within the statutory ceiling and accords with the prayer before the Court. 25. I therefore determine the third issue in the affirmative. Judgment shall be entered for Kshs. 551,400/= with simple interest at 14% per annum from 28th RULING: ELCC/E037/2022 January 2026 until Page 12 of 16

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payment in full. As execution follows a judgment or decree unless stayed or otherwise restricted, the Applicant may execute in accordance with the Civil Procedure Rules; no separate substantive leave is necessary beyond the liberty recorded in the final orders. Issue Four: Costs of the Motion and the Preliminary Objection 26. Costs remain in the discretion of the Court under section 27(1) of the Civil Procedure Act, but ordinarily follow the event unless good reason is shown for a different order. The Applicant has succeeded in its Motion. The Plaintiff’s objection, having raised factual controversies as preliminary points and relied upon a Notice of Appeal that did not amount to a stay, has failed in its entirety. 27. No conduct by the Applicant has been demonstrated that would justify depriving it of costs. The 1st Defendant shall therefore have the costs of the Motion and of the Preliminary Objection. RULING: ELCC/E037/2022 Page 13 of 16

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Conclusion and Disposition 28. This dispute is ultimately narrower than the parties’ papers suggest. Corporate-authority allegations that demand proof cannot be transformed into pure points of law. A Notice of Appeal is not a stay. An unchallenged Certificate of Costs is not a provisional figure. Litigation must have a terminus; on quantum, taxation supplied that terminus and the Certificate recorded it. The Court’s duty is now to give the certified award practical effect. 29. Accordingly, the Court makes the following orders: a. The Plaintiff’s Notice of Preliminary Objection dated 27th July 2026 is dismissed. b. The Certificate of Costs dated 17th February 2026 is adopted as a judgment of this Court. c. Judgment is entered Defendant/Applicant for the against Plaintiff/Respondent for Kshs. 551,400/=. RULING: ELCC/E037/2022 Page 14 of 16 1st the

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d. The sum of Kshs. 551,400/= shall attract simple interest at 14% per annum from 28th January 2026 until payment in full. e. The 1st Defendant/Applicant is at liberty to execute the resulting decree in accordance with the law, there being no stay of execution presently before the Court. f. The Plaintiff/Respondent shall bear the costs of the Notice of Motion dated 13th March 2026 and the Notice of Preliminary Objection dated 27th July 2026. Orders accordingly. RULING DATED, SIGNED AND DELIVERED virtually at Mombasa via Microsoft teams this 1st day of October 2026. ……………………………….. B. A. AKELLO JUDGE In the presence of: Gillian – Court Assistant RULING: ELCC/E037/2022 Page 15 of 16

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Wagumba for 1st defendant No appearance for plaintiff No appearance for 2nd defendant RULING: ELCC/E037/2022 Page 16 of 16

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