Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Supreme CourtDismissedPetition 31 of 2018

Ali v Independent Electoral & Boundaries Commission & 2 others

Supreme Court of Kenya
25 September 2026
2,056 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

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

#
This is a ruling by Warsame, SCJ of the Supreme Court of Kenya on a taxation reference under rule 62 of the Supreme Court Rules, 2020, arising from the 2017 Changamwe Constituency election petition, which the applicant lost at the High Court, the Court of Appeal (judgment of 26th July 2018) and this Court (judgment of 6th February 2019, with costs to the 1st and 2nd respondents). The respondents filed a party and party bill of costs on 17th December 2025 claiming Ksh. 7,150,430. The Deputy Registrar dismissed the applicant's preliminary objection that the bill was time-barred under section 4(1)(a) of the Limitation of Actions Act, holding section 4(4) (twelve years for actions on a judgment) applicable, taxed instruction fees at Ksh. 2,000,000 and awarded Ksh. 2,036,030 in total. The applicant sought review, arguing the bill was statute-barred, that the award was disproportionate compared to Milly Glass Works, and that the Deputy Registrar failed to give reasons. The Court held that party and party costs are awarded as part of the judgment and arise from the Court's power to make orders as to costs, not from any contract, so section 4(4) applies; the applicant's advocate-client authorities were distinguishable. On quantum, applying Nairobi Bottlers and Outa, the Court found the Deputy Registrar's discretion judicially exercised and the fees not manifestly excessive. The reference was dismissed with costs to the applicant.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 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. 2.Whether the instruction fees of Ksh. 2,000,000/= are manifestly excessive

Key legal issues

#
01

Limitation period applicable to a party and party bill of costs

Holding

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.

Reasoning

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.

p. 3
02

Whether the award of Ksh. 2,000,000 instruction fees was manifestly excessive

Holding

The Deputy Registrar's discretion was exercised judicially and the award was not manifestly excessive; the single Judge declined to interfere.

Reasoning

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.

p. 4

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. 1.The notice of motion dated 23rd March 2026 is dismissed
  2. 2.The applicant shall bear the costs of the application

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

Mohamed Abdulahi Warsame
M. A. WarsameSCJ
Currently serving
majority

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

p. 3

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

p. 4

Remittal to the Deputy Registrar for re-taxation with directions

Application lacked merit as the Deputy Registrar properly exercised her discretion

p. 4

Re-taxation of the instruction fees afresh under the court's inherent jurisdiction

Not granted; the application was dismissed in its entirety

p. 4

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.
p. 3Distinction between party and party and advocate-client 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.
p. 3Limitation applicable to party and party costs
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.
p. 4Standard for interference with taxation decisions
The notice of motion dated 23rd March 2026 is hereby dismissed; 2. The applicant shall bear the costs of this application.
p. 4Final orders

Issues in the judgment

#
minor

Typographical error in the judgment: 'Comsidering' for 'Considering' in the recital of the preliminary objection.

minor

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.