James Mushanki v Mombasa Cement Limited & another
The bottom line
#A Kenyan court confirmed that filing a Notice of Appeal does not stop enforcement of taxed costs, awarding Mombasa Cement Kshs. 551,400 plus interest.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Notice of Preliminary Objection is competent and meritorious
- 2.Whether the Notice of Appeal bars adoption or enforcement of the Certificate of Costs
- 3.Whether judgment should be entered upon the Certificate of Costs and, if so, the applicable interest
- 4.Who should bear the costs of the Motion and the Preliminary Objection
Key legal issues
#Whether the Notice of Preliminary Objection is competent and meritorious
The objection failed: the first ground was a bare conclusion and the authority-based grounds required fact-finding, so the objection fell outside the Mukisa Biscuit threshold and was incompetent and unmeritorious.
Applying Mukisa Biscuit as affirmed by the Supreme Court in Joho and Aviation & Allied, a preliminary objection must be a pure point of law decidable without evidence. The first ground alleged incurable defect without identifying any legal provision. The second and third grounds, challenging the deponent's and the advocates' authority, raised factual questions - who instructed counsel, the deponent's position, ratification. Makupa Transit Shade and Mathu v Inkom establish that absence of an exhibited board resolution does not, without more, render proceedings incompetent, and the company had not disowned the deponent, Motion or advocates.
Whether the Notice of Appeal bars adoption or enforcement of the Certificate of Costs
It does not. An appeal invokes appellate jurisdiction; a stay restrains enforcement and must be expressly applied for and obtained. No stay existed, so adoption and enforcement proceeded.
The court distinguished an appeal from a stay: the first does not automatically produce the second. Order 42 rule 6(1) provides that no appeal shall operate as a stay of execution or proceedings except to the extent the court appealed from may order. No order staying the judgment, the costs order, taxation or execution of the certificate was placed before the Court. Treating the notice alone as a stay would grant by implication an order the law requires to be expressly sought and judicially justified.
Whether judgment should be entered upon the Certificate of Costs and the applicable interest
Judgment entered for Kshs. 551,400/= with simple interest at 14% per annum from the taxation date of 28th January 2026; the unchallenged certificate settled quantum and adoption gave it executable form.
The certificate had not been referred, reviewed, set aside or stayed, and the Court was not sitting on appeal from the taxing officer. Section 51(2) of the Advocates Act and Kenya Airports Authority v Otieno, Ragot underscore the finality of an unaltered certificate, though the principle was applied by analogy since this was a party-and-party certificate enforced under section 27 of the Civil Procedure Act. The court corrected a draft figure of Kshs. 522,448/= to the certified Kshs. 551,400/=. Interest on party-and-party costs falls under section 27(2), capped at 14%; rule 7 of the Advocates (Remuneration) Order governs only advocate-client costs; interest runs from taxation, when the amount became certain.
Who should bear the costs of the Motion and the Preliminary Objection
The 1st Defendant was awarded the costs of both the Motion and the Preliminary Objection, costs following the event.
Under section 27(1) of the Civil Procedure Act costs are discretionary but ordinarily follow the event unless good reason is shown for a different order. The Applicant succeeded in its Motion; the Plaintiff's objection raised factual controversies as preliminary points and relied on a Notice of Appeal that did not amount to a stay, failing in its entirety. No conduct by the Applicant was demonstrated that would justify depriving it of costs.
Legal principles established
#- An unchallenged and unaltered certificate of costs is final; once taxation has settled quantum, the law turns from ascertainment to enforcement.
- A Notice of Appeal is not a stay of execution; suspension of enforcement must be expressly sought and judicially obtained, and cannot be implied.
- A preliminary objection must disclose a precise legal foundation and be decidable without evidence; grounds depending on disputed facts or bare conclusions are incompetent.
- An affidavit for a corporation may be sworn by a person stating authority and knowledge of the facts; an exhibited written board resolution is not invariably required.
- Interest on party-and-party costs is governed by section 27(2) of the Civil Procedure Act, capped at 14% per annum; rule 7 of the Advocates (Remuneration) Order regulates only advocate-client costs.
Court orders
#- 1.The Plaintiff's Notice of Preliminary Objection dated 27th July 2026 is dismissed.
- 2.The Certificate of Costs dated 17th February 2026 is adopted as a judgment of the Court.
- 3.Judgment is entered for the 1st Defendant/Applicant against the Plaintiff/Respondent for Kshs. 551,400/=.
- 4.The sum of Kshs. 551,400/= shall attract simple interest at 14% per annum from 28th January 2026 until payment in full.
- 5.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.
- 6.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.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 27 of the Civil Procedure Act (the Court's costs jurisdiction), with the Motion premised on Order 21 rule 9 and Order 51 rule 1 of the Civil Procedure Rules; interest awarded under section 27(2).
Relief refused
#Plaintiff's request that the Motion be dismissed with costs on grounds of incurable defect, want of corporate authority of the deponent and advocates, and the pending Notice of Appeal
All four grounds of the preliminary objection failed; the Motion succeeded in full.
Costs
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 - i.e., costs of both the Motion and the Preliminary Objection awarded to the 1st Defendant/Applicant.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
A certificate of costs is not a rehearsal for another contest over quantum. Once the taxing officer has spoken, and the certificate has neither been altered nor set aside, the amount is settled.
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.
A Notice of Appeal is not a stay. An unchallenged Certificate of Costs is not a provisional figure.
Adoption of the certificate does not create a new liability; it gives executable form to the costs liability already awarded and quantified.
The Certificate of Costs dated 17th February 2026 is adopted as a judgment of this Court.
The sum of Kshs. 551,400/= shall attract simple interest at 14% per annum from 28th January 2026 until payment in full.
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.
Issues in the judgment
#The judgment itself discloses that its researcher's draft carried a decretal figure of Kshs. 522,448/= inconsistent with the certified Kshs. 551,400/=; the court corrected the amount before delivering.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Mushanki v Mombasa Cement Limited & another", Case Analysis (2026). ELCC No. E037 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6303/eng@2026-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.