[2025] KEELC 4553 (KLR)

Marumbi v Katamo (Environment and Land Appeal E024 of 2024) [2025] KEELC 4553 (KLR) (5 June 2025) (Judgment)

Neutral citation: [2025] KEELC 4553 (KLR)

Republic of Kenya

In the Environment and Land Court at Bungoma

Environment and Land Appeal E024 of 2024

EC Cherono, J

June 5, 2025

Between

Mercy Marumbi

Appellant

and

Elizabeth Katamo

Respondent

Judgment

Introduction. 1. Vide a Memorandum of Appeal dated 23/05/2024, the Appellant who was the defendant in the former suit being Bungoma CM-ELC Case No. 17 of 2024 appeals to this Honourable Court challenging the ruling by the trial Magistrate whereby the court ordered a stay of execution pending proper notification and service of the certificate of costs upon the defendant, after which execution may proceed.

2. The brief facts of the case are that the Respondent filed a suit against the Appellant vide a plaint dated 17/10/2023 seeking orders for eviction, a permanent restraining orders, and costs of the suit. The Respondent also filed an application dated 18/10/2023 while the Appellant filed his statement of defence dated 24/11/2023. The above-mentioned application dated 18/10/2023 was agreed to be canvassed by way of written submissions and a ruling was delivered on 15/02/2024 whereby the said application was allowed with costs to the Respondent. The Respondent filed party and party bill of costs dated 20/03/2024 which was taxed off at Ksh. 99,100/= and a certificate of costs issued dated 05/04/2024.

3. The Appellant herein thereafter filed an application dated 08/04/2024 (which application gave rise to the impugned ruling) wherein he sought the following orders;a.That the service of this application be and is herby dispensed with and this application be heard ex-parte at the 1st instance due to urgency.b.That there be a stay of execution of the pending the hearing and determination of this application inter-partes.c.That the execution herein be lifted and the warrants of attachment in execution of decree issued by this honourable court be vacated.d.That the order on taxation of costs dated 02/04/2024 be set aside, the defendant/applicant be granted leave to file submissions in respect of the bill of costs dated the 20/03/2024. e.That costs of this application be provided for and be borne by the plaintiff/respondents.

4. The application was opposed by the Respondent who filed grounds of opposition dated 16/04/2024 and when the said application came up for directions, the parties agreed to have it canvassed by way of written submissions. The trial court thereafter delivered the impugned ruling.

5. Aggrieved by the said ruling, the Appellant preferred the current appeal on the following grounds;a.That the learned trial magistrate erred in law and in fact when he failed to lift the execution and vacate the warrants of attachment in execution of decree that was premature.b.That the learned trial magistrate erred in law and in fact when he righty held that costs in magistrates’ courts are assessed by the court administrator upon notice to the parties, but contradicted himself when he held that there was no basis for setting aside the assessment of costs, yet the appellant had not been notified of the said assessment.c.That the learned trial magistrate erred in law and in fact in not finding that the appellant was neither served with the bill of costs nor notified of the taxation thereof.d.That the learned trial magistrate erred in law and in fact when he failed to find that the costs in magistrates courts though taxed by the court administrator are endorsed by the magistrates whose has a discretion not to endorse the costs sufficient reason.e.That the learned trial magistrate erred in law and in fact when he failed to set aside the taxation of costs and give the appellant an opportunity to file submissions on the bill of costs yet the taxation was manifestly excessive.f.That the learned trial magistrate erred in law and in fact when he failed to appreciate the application before him thereby granting the appellant orders that the appellant had not prayed for.g.That the learned trial magistrate erred in law and in fact when in allowing the respondent to proceed with execution yet there is neither judgment nor decree capable of execution.h.That the learned trial magistrate erred in law and in fact when he failed to find that the costs awarded were for an interlocutory application only which ought to be taxed after hearing the substantive case and after the court has delivered judgment and draw a decree.

6. The Appellant filed submissions dated 25/03/2025 where reliance was placed in the provisions of Order 51 Rule 11 (2) of the Civil Procedure Rules and stated that the directions to execute the costs mid-trial was irregular as execution of such costs can only be done at the end of suit. It was submitted that bill of costs as taxed by the court administrator without the other party being served was illegal as service is mandatory. Reliance was placed in the case of Republic vs. Deputy Registrar, High Court Mombasa Ex Parte Tiomin (K) Ltd.

7. The Respondent filed submissions dated 07/04/2025 and argued that the trial court issued execution after following due process, the Appellant was aware of the proceedings and failed to act in time. That execution followed proper procedure and statutory timelines under order 22 of the civil procedure rules. She cited the case of Kipkorir,Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] KECA 325 (KLR). She stated that the claim of lack of notification is misleading. That the bill of cost was duly filed, taxed and endorsed pursuant to order 21 rule 9. It was argued that the Appellant did not apply to set aside or object within the required timelines. It was further submitted that the trial court ensures discretion on endorsing taxed cost.

8. It was argued that the Appellant provided no sufficient cause to warrant setting aside the taxation. Reliance was placed in the case of Mohammed v Akwala t/a Akwala & Co Advocates (Miscellaneous Civil Application E071 of 2023) [2024] KEHC 12884 (KLR) (17 October 2024) (Ruling). It was further submitted that there was a lawful order awarding costs and that execution is not limited to final decrees. Costs awarded through interlocutory rulings are still costs and they were awarded to the Respondent. Lastly, it was submitted that there is no rule barring taxation of interlocutory costs unless expressly directed by the court. I was argued that the Appellant did not object to the taxation and is estopped from raising this argument at appeal stage.

Legal Analysis And Decision 9. I have considered the Memorandum of Appeal, the record of appeal, the submissions by the parties and the relevant law and in my considered view, two questions arise for determination as follows;a.whether the Respondent’s Bill of Costs was prematurely filed.b.whether the Respondent is under obligation to await the outcome of the main suit to have his costs taxed.

10. I shall discuss the two issues concurrently. The general rule in taxation for costs of an application is provided for under Order 51 rule 11(2) which provides as follows;Unless the court otherwise orders for special reasons to be recorded, costs awarded upon an originating summons, applications or other process shall be taxed only at the conclusion of the suit.

11. From the foregoing, it is clear that even in cases where the costs are awarded on an Originating Summons which is a suit, the same are, unless otherwise provided, only to be taxed at the conclusion of the suit. The reasoning behind this is that costs can only emanate from a decree and since the court issued a ruling, the successful party can only tax for costs once a decree has been drawn. It is also aimed at ensuring that the Court does not find itself in a situation in which it would have to conduct multiple sets of taxation in respect of the same suit which may then lead to multiple references. This is in line with the oxygen principle which aim at efficient disposal of the business of the Court as well as the efficient use of the available judicial and administrative resources. In order to achieve this, the Court ought to ensure that litigation is reduced to a minimal.

12. In the case of Commercial Bank Of Africa V Lalji Karsan Rabadia & 2 Others [2012] eKLR Justice Odunga stated as follows;“Unless, therefore, the delay in taxing the costs arising from interlocutory orders or preliminary decrees will have the effect of rendering the enjoyment of such orders and decrees a mirage, taxation ought to await the final determination of the suit.’’

13. In the case of Auto Springs Manufacturers Limited versus Damisha Building Contractors Limited [ 2017] eKLR, the court of Appeal held;“… it is trite law that unless the court directs the immediate taxation and payment of costs in an application there should only be one taxation of costs at the tail end of the suit as was held in Homi Dara Adrinwalla –versus Jeanne Hogan and another [1966] 1EA 290 where the court held that;“I cannot find, nor has there been referred to me, any authority for taxation of interlocutory application in Tanzania”

14. The upshot of my finding is that this appeal is merited and the same is hereby allowed with costs.

15. Orders accordingly.

DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 05TH DAY OF JUNE, 2025. ……………………………..HON.E.C CHERONOELC JUDGEIn the presence of;1. Mr. Were for the Appellant.2. Mr. Muyala for the Respondent.3. Bett C/A.