Ali v Independent Electoral & Boundaries Commission & 2 others
The bottom line
#The Supreme Court confirmed that winning parties have twelve years to claim court-awarded costs in Kenya, and upheld a Ksh. 2 million fee award.
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 party and party bill of costs filed on 17th December 2025 is statute-barred under section 4(1)(a) of the Limitation of Actions Act
- 2.Whether the instruction fees of Ksh. 2,000,000/= are manifestly excessive
Key legal issues
#Limitation period applicable to a party and party bill of costs
Section 4(4) of the Limitation of Actions Act (twelve years for actions on a judgment) applies; party and party costs are awarded as part of the judgment and do not arise from contract.
The court distinguished the applicant's authorities, all of which concerned advocate-client bills arising from a contractual retainer. Costs awarded by the court to a successful party crystallise upon judgment; the bill merely particularises and quantifies sums payable under that judgment. The bill filed six years and ten months after judgment was therefore not time-barred.
Whether the award of Ksh. 2,000,000 instruction fees was manifestly excessive
The Deputy Registrar's discretion was exercised judicially and the award was not manifestly excessive; the single Judge declined to interfere.
The Deputy Registrar identified the basic prescribed fee, considered paragraph 9(2) of the third schedule, engaged with the parties' arguments, found the claimed fees on the higher side, and assessed Ksh. 2,000,000 having regard to the constitutional significance, complexity and volume of documentation in an election petition that traversed three courts. The applicant's comparison with Milly Glass Works was unhelpful given the different nature and scope of that commercial dispute.
Legal principles established
#- A party and party bill of costs arises from the judgment itself, not from contract, so the twelve-year limitation period in section 4(4) of the Limitation of Actions Act applies rather than the six-year contractual period in section 4(1)(a).
- A single Judge may interfere with a taxing officer's decision only where there is an error of principle or where the fee is manifestly excessive or deficient amounting to an injustice.
- The test is whether, on a fair reading of the ruling as a whole, the taxing officer's discretion was exercised judicially, not whether every relevant principle was expressly recited.
Court orders
#- 1.The notice of motion dated 23rd March 2026 is dismissed
- 2.The applicant shall bear the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Deputy Registrar, Supreme Court of Kenya
- Jurisdiction invoked
- Rule 62 of the Supreme Court Rules, 2020 (reference against a decision of the Registrar on taxation)
Relief refused
#Striking out of the Bill of Costs dated 17th December 2025 in its entirety
The bill was not statute-barred; section 4(4) of the Limitation of Actions Act applies to party and party costs awarded as part of a judgment
Setting aside or varying the Deputy Registrar's award of Ksh. 2,000,000 instruction fees
No error of principle demonstrated; the award was a reasoned exercise of discretion and not manifestly excessive
Remittal to the Deputy Registrar for re-taxation with directions
Application lacked merit as the Deputy Registrar properly exercised her discretion
Re-taxation of the instruction fees afresh under the court's inherent jurisdiction
Not granted; the application was dismissed in its entirety
Costs
The applicant shall bear the costs of this application.
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 party and party bill of costs is fundamentally different in nature and origin from an advocate-client bill of costs.
The right to recover such costs is therefore not grounded in contract but in the judgment itself. Section 4(4) of the Limitation of Actions Act accordingly applies.
The question, therefore, is not whether a taxing officer expressly recited every relevant principle or factor, but whether, on a fair reading of the ruling as a whole, the discretion was exercised judicially.
The notice of motion dated 23rd March 2026 is hereby dismissed; 2. The applicant shall bear the costs of this application.
Issues in the judgment
#Typographical error in the judgment: 'Comsidering' for 'Considering' in the recital of the preliminary objection.
Judgment recites claimed instruction fees of Ksh. 5,000,000 in the Deputy Registrar's ruling, unexplained against the bill total of Ksh. 7,150,430.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ali v Independent Electoral & Boundaries Commission & 2 others", Case Analysis (2026). Petition 31 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/kesc/2026/63/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.