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ELCDismissedNot stated in judgment (Notice of Motion dated 10th January 2018)· [2018] KEELC 3866 (KLR)

Joel Kipkoech Tonui v Bondet arap Tuikong [2018] KEELC 3866 (KLR)

Environment and Land Court (not expressly stated; presided over by J.M Onyango, Judge, at Kericho)
20 March 2018
JOJ.M ONYANGO
1,264 words in judgment
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The bottom line

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A Kenyan court refused to review its own costs ruling, confirming that disagreements with a judge's decision belong in an appeal, not a review application.

What this practically means

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Executive summary

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This was a Notice of Motion dated 10th January 2018 in which the defendant, pursuant to Order 45 Rule 2 of the Civil Procedure Rules and Sections 1, 1A, 1B, 3 and 3A of the Civil Procedure Act, sought review of the judgment dated 17th November 2017 and all consequential orders, contending that there was an error apparent on the face of the record because the court had awarded costs to the plaintiff after finding that both parties had encroached on a road reserve. The plaintiff opposed the application through Grounds of Opposition, arguing that it was fatally defective as the court was functus officio having pronounced itself finally on costs. The matter proceeded by written submissions, though only the plaintiff's counsel filed. J.M Onyango, Judge, framed three issues: whether the threshold for review had been met; whether the reliefs sought should issue; and who should bear costs. Relying on Court of Appeal authorities including Antony Gachara Ayub v Francis Thinwa and National Bank of Kenya v Ndungu Njau, the court held that an error apparent on the face of the record must be self-evident and not require elaborate argument; a discretionary award of costs based on the finding that the plaintiff had largely proved his case on a balance of probabilities was at most an erroneous exercise of discretion, which is a ground for appeal and not for review. The application was dismissed with costs.

Key legal issues

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01

Whether a challenge to the court's exercise of discretion on costs constitutes an error apparent on the face of the record under Order 45(1)

Holding

No. Costs were awarded to the plaintiff because he largely proved his case on a balance of probabilities; the fact that another view was possible does not make the exercise of discretion an apparent error. The grievance, if any, lies on appeal.

Reasoning

Order 45(1) requires a mistake or error apparent on the face of the record. Following the Court of Appeal authorities, an error apparent must be self-evident and require no elaborate argument; a discretionary costs award supported by a finding that the plaintiff proved his case is a possible view and hence not reviewable. An erroneous conclusion of law or evidence is a ground for appeal, not review, so the defendant, having opted for review, was on the wrong path.

p. 2

Legal principles established

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  • An error apparent on the face of the record must be self-evident and not require elaborate argument; a mere erroneous decision or wrong view of the law is a ground for appeal, not review
  • Costs are in the discretion of the court and follow the event unless the court for good reason otherwise orders

Court orders

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  1. 1.The Notice of Motion dated 10th January 2018 seeking review of the judgment dated 17th November 2017 is dismissed
  2. 2.The defendant shall pay the costs of the application

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 1B, 3, 3A
  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 45 Rule 1 and Rule 2

Cases cited (5)

  • Antony Gachara Ayub V Francis Thinwa
    C.A No 92 of 2008
  • Draft and Develop Engineers Limited V National Water Conservation and Pipeline Corporation
    Civil Case No 11 of 2011
  • National Bank of Kenya Limited V Ndungu Njau
    C.A No 211 of 1996
  • Origo & Another V Mungala
    (2005) 2 KLR
  • Jameny Mudaki Asava V Brown Otengo Asava & Another
    (2015) eKLR
Jurisdiction invoked
Order 45 Rule 2 of the Civil Procedure Rules; Sections 1, 1A, 1B, 3 and 3A of the Civil Procedure Act

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, "Joel Kipkoech Tonui v Bondet arap Tuikong [2018] KEELC 3866 (KLR)", Case Analysis (2018). Not stated in judgment (Notice of Motion dated 10th January 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3866/eng@2018-03-20

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