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ELCPartially AllowedKisumu Environment & Land Court Suit (Busia) – Application dated 8th May 2019· [2019] KEELC 891 (KLR)

Colombus Opio Adeti v Alexander Oyiolo Odongo [2019] KEELC 891 (KLR)

Environment and Land Court
7 November 2019
AOA. Omollo
1,766 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court set aside a Kshs.6.5 million costs ruling because the bill was taxed before a pending preliminary objection was decided.

What this practically means

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Executive summary

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The Plaintiff, through counsel Francis Omondi, moved the Environment and Land Court at Busia by an application dated 8th May 2019 under sections 1A, 1B and 3A of the Civil Procedure Act and Rule 11 of the Advocates Remuneration Order, seeking to set aside the Deputy Registrar's ruling of 1st March 2019 by which costs were conclusively taxed at Kshs.6,517,817, or alternatively leave to lodge a reference out of time. The Plaintiff contended that a preliminary objection dated 5th April 2018 against the bill was pending and that parties had expressly sought a ruling date on it; the taxation ruling made no mention of the objection, no taxation notice was issued and the Plaintiff was given no input or notice of delivery. The Defendant opposed, arguing that the application was defective, that the objection was technical and unmerited, and that the bill fairly reflected mesne profits of some Kshs.64 million claimed in the main suit, which had been dismissed and was on appeal. The court examined the record, confirmed that what had been listed for determination was the preliminary objection, and held that taxing the bill beforehand was premature and contravened natural justice, and that the ruling violated Order 21 Rule 4 by failing to give the decision and reasons on the objection. Applying the classic ex parte set-aside principles in Pithon Waweru Maina, Patel, and Mbogo v Shah, the court found a misdirection, allowed the motion in terms of prayer (c), directed remittal of the preliminary objection to the current Deputy Registrar for mention on 20th November 2019, and ordered each party to bear their own costs of the application.

Key legal issues

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01

Whether the Deputy Registrar erred in taxing the bill before determining the pending preliminary objection

Holding

Yes; the taxation was premature and infringed the right to be heard, warranting setting aside ex debito justitiae.

Reasoning

The record showed parties had, on 31st October 2018, expressly sought a ruling date on the preliminary objection dated 5th April 2018. The ruling delivered on 1st March 2019 dealt only with taxation of the bill, made no mention of the preliminary objection and gave no reasons, contrary to Order 21 Rule 4 of the Civil Procedure Rules. By directing submissions on the preliminary objection, the taxing officer had effectively stayed taxation; proceeding to tax shut the Plaintiff out of contesting the bill.

p. 3
02

Whether the court should exercise discretion to set aside the ex parte taxation ruling

Holding

Yes; the Applicant demonstrated a misdirection warranting setting aside ex debito justitiae.

Reasoning

Applying the principles in Pithon Waweru Maina, Patel and Mbogo v Shah, the court held its discretion to be exercised to do justice between the parties and to relieve against inadvertence or excusable mistake. Counsel's discovery of the delivered ruling by chance, without notice, satisfied the court that the Deputy Registrar had misdirected herself, justifying setting aside rather than confining the Applicant to a reference.

p. 3

Legal principles established

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  • A taxing officer who has directed parties to file submissions on a preliminary objection puts taxation of the bill on hold pending that determination; taxing the bill beforehand contravenes natural justice.
  • A decision on a preliminary objection must state the points for determination, the decision and the reasons, per Order 21 Rule 4 of the Civil Procedure Rules.
  • The court's discretion to set aside ex parte orders is wide and exercised to avoid injustice from accident, inadvertence or excusable mistake.

Court orders

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  1. 1.Set aside the Deputy Registrar's ruling on taxation delivered on 1st March 2019 ex debito justitiae in terms of prayer (c)
  2. 2.Return the file to the current Deputy Registrar of the Environment & Land Court, Busia, to determine the pending preliminary objection
  3. 3.File to be placed before the Deputy Registrar on 20th November 2019 for appropriate directions
  4. 4.Each party to meet their respective costs of the application

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3A
  • Advocates Remuneration OrderRule 11; Rule 72
  • Civil Procedure RulesOrder 21 Rule 4

Cases cited (6)

  • Peter Muthoka & Another vs Ochieng & 3 Others (2019) eKLR
    (2019) eKLR
  • Pithon Waweru Maina vs Thuka Mugiria
    (1982-88) I KAR 171
  • Patel vs EA Cargo Handling Services Ltd
    [1974] EA 75
  • Mbogo vs Shah
    [1968] EA 93
  • Shah vs Mbogo
    [1967] EA 116
  • Shabir Din vs Ram Parkash Anand
    (1955) 22 EACA
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Rule 11 of the Advocates Remuneration Order

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, "Colombus Opio Adeti v Alexander Oyiolo Odongo [2019] KEELC 891 (KLR)", Case Analysis (2019). Kisumu Environment & Land Court Suit (Busia) – Application dated 8th May 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/891/eng@2019-11-07

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