Muungano wa Wakulima v Registrar of Land Kilifi & 2 others [2017] KEELC 1944 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether awarding costs against a party found to be a non-entity is an error apparent on the face of the record
It is not; the award of costs was a proper exercise of judicial discretion and any challenge to it lies on appeal, not review
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.
Whether the agent of an unincorporated association should personally bear costs
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
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.
Legal principles established
#- 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
#- 1.The application dated 20th March 2017 for review is dismissed with costs to the Third Respondent
- 2.The costs of the application shall be borne by the Applicant Gerald Iha Thoya personally
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.