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ELCDismissedNot stated in the judgment excerpt· [2017] KEELC 1944 (KLR)

Muungano wa Wakulima v Registrar of Land Kilifi & 2 others [2017] KEELC 1944 (KLR)

Environment and Land Court
19 September 2017
1,880 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to change a five-year-old costs order, ruling that disagreements with a judge's costs decision belong on appeal, not review.

What this practically means

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Executive summary

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The applicant, Gerald Iha Thoya, filed an application dated 20th March 2017 under Sections 1A and 3A of the Civil Procedure Rules seeking review of the order of 28th November 2012 by Meoli J, in which the suit was struck out following a preliminary objection on the plaintiff Muungano wa Wakulima's want of legal capacity, and costs were nonetheless awarded to the respondents. The applicant contended that, the plaintiff having been held to be a non-entity, the order requiring the non-entity to bear costs was an error apparent on the face of the record warranting review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. The 3rd respondent opposed, arguing the application was misconceived, brought in bad faith, an afterthought filed five years after the order, and unsupported by new evidence. The court applied the test in Muyodi v ICDC on error apparent on the face of the record and held that the award of costs was a proper exercise of the judge's unfettered discretion under Section 27 of the Civil Procedure Act; even if erroneous, it was an error in law and thus a ground of appeal, not review. Following Elijah Sikona v Mara Conservancy, where agents of a non-existent organization were ordered to personally bear costs, the court considered the applicant's conduct and the five-year delay, dismissed the application with costs to the Third Respondent, and directed that those costs be borne personally by Gerald Iha Thoya.

Key legal issues

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01

Whether awarding costs against a party found to be a non-entity is an error apparent on the face of the record

Holding

It is not; the award of costs was a proper exercise of judicial discretion and any challenge to it lies on appeal, not review

Reasoning

The court held that a judge has an unfettered discretion under Section 27 of the Civil Procedure Act to award costs, and the fact that the plaintiff lacked legal capacity did not render the costs order an error apparent on the face of the record. Following Muyodi v ICDC, a possible or wrong view is not an error for review; a mere erroneous decision must be pursued on appeal.

p. 3
02

Whether the agent of an unincorporated association should personally bear costs

Holding

Yes; the applicant, having litigated as agent of a non-existent body and filed the application five years later, was ordered to bear costs personally

Reasoning

Relying on Elijah Sikona & George Panken Narok v Mara Conservancy, where plaintiffs acting for a non-existent organization were ordered to personally bear costs, the court considered the applicant's conduct and the delay of five years in bringing the review application, and ordered him to personally bear the costs of the dismissed application.

p. 3

Legal principles established

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  • Costs are in the discretion of the court, and this discretion is unfettered and must be exercised judicially
  • A decision that is merely erroneous in law is a ground of appeal, not an error apparent on the face of the record for purposes of review
  • In determining costs the court may consider the conduct of the parties, the subject matter of litigation and the circumstances leading to the institution of proceedings

Court orders

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  1. 1.The application dated 20th March 2017 for review is dismissed with costs to the Third Respondent
  2. 2.The costs of the application shall be borne by the Applicant Gerald Iha Thoya personally

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 45 rule 1(1)
  • Civil Procedure RulesSections 1A and 3A

Cases cited (5)

  • Muyodi –vs- Industrial and Commercial Development Corporation & Another
    (2006) 1 EA 243
  • Nyamogo & Nyamogo –vs- Kogo
    (2000) EA 174
  • Republic –vs- Jasbir Singh Rai & 3 Others –vs- Tarlochan Shingh Rai & Others
    (2014) eKLR, Judicial Review Application No.6 of 2014
  • Cecilia Karuru Ngayu –vs- Barclays Bank of Kenya & Another
    (2016) eKLR
  • Elijah Sikona & George Panken Narok on behalf of Trusted Society of Human Rights Alliance –vs- Mara Conservancy & 5 Others
    (2014) eKLR
Jurisdiction invoked
Sections 1A and 3A of the Civil Procedure Rules; Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Muungano wa Wakulima v Registrar of Land Kilifi & 2 others [2017] KEELC 1944 (KLR)", Case Analysis (2017). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1944/eng@2017-09-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.