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ELCDismissed· [2019] KEELC 1898 (KLR)

Republic v Chairman Provincial Land Disputes Tribunal Committee & 2 others Ex-Parte Ledama Lelei [2019] KEELC 1898 (KLR)

High Court of Kenya
3 July 2019
1,260 words in judgment
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The bottom line

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The High Court in Kericho refused to overturn a certificate of costs, ruling that proof of service by registered post stands and delay plus missing review grounds doom such applications.

What this practically means

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Executive summary

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The High Court at Kericho (J.M Onyango, J) determined a Notice of Motion dated 27th February 2019 filed by the 3rd Respondent seeking, first, interim restraint against the subject (the successful counsel) attaching or selling the 3rd Respondent's property, secondly, setting aside of the Certificate of Costs and the subject's Bill of Costs on the ground that the 3rd Respondent was never served with the Bill of Costs, and thirdly, apportionment of costs among all Respondents. The subject opposed the application through a replying affidavit of Erastus Menge Orina, Advocate, exhibiting a certificate of posting dated 7th April 2016 and an affidavit of service dated 11th April 2016 showing service of the Bill of Costs and Notice of Taxation by registered post on the 3rd Respondent's advocate; taxation followed on 10th May 2016. The court framed three issues: validity of the application, setting aside of the certificate of costs, and apportionment of costs. It held the application valid because the Notice of Motion filed in court was duly signed, following Atulkumar Maganlal Shah v Investments and Mortgages Bank Ltd. It found service proved by the certificate of posting and affidavit of service. On apportionment, the court noted the costs had been awarded to the applicant by Hon. Lady Justice Waithaka on 25th June 2014; only the 3rd Respondent participated in the proceedings, and the application, made more than five years later without explanation, failed to meet the review conditions in section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. The application was dismissed with costs to the 3rd Respondent.

Key legal issues

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01

Validity of an application served in unsigned form

Holding

The application is valid because the Notice of Motion filed in court was duly signed; unsigned served copies alone do not invalidate it.

Reasoning

Counsel for the subject argued that unsigned copies rendered the application invalid. The court accepted that unsigned pleadings are a substantive defect, citing Southern Engineering Co Ltd v Heady Berge Ltd, but found that the original filed in court was signed. Relying on Atulkumar Maganlal Shah v Investments and Mortgages Bank Ltd, it held the defect was not fatal since the filed original was signed.

p. 2
02

Whether the Certificate of costs should be set aside for non-service of the Bill of Costs

Holding

The certificate cannot be set aside because the record shows service by registered post and an affidavit of service on the 3rd Respondent's advocate.

Reasoning

Despite the 3rd Respondent's denial of service, the subject's counsel produced a certificate of posting dated 7th April 2016 addressed to the same address used by the 3rd Respondent's counsel, together with an affidavit of service dated 11th April 2016. The court found this evidence sufficient to establish service of the Bill of Costs and Notice of Taxation, which were subsequently taxed on 10th May 2016.

p. 2
03

Whether costs should be apportioned among the Respondents

Holding

No apportionment: the costs order made by Hon. Lady Justice Waithaka on 25th June 2014 was not shown to be reviewable and the 3rd Respondent, as the only participating party, bore the obligation.

Reasoning

Section 27(1) of the Civil Procedure Act gives the court discretion on costs, but the costs had already been awarded to the applicant by the trial court. The 1st and 2nd Respondents did not participate, and the 1st Respondent ceased to exist upon repeal of the Land Disputes Tribunal Act in 2012. The application, made over five years later without explanation, did not meet the review conditions in section 80 of the Civil Procedure Act and Order 45.

p. 3

Legal principles established

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  • A Notice of Motion filed in court that is duly signed is valid even if copies served on the other side were unsigned
  • A certificate of posting to counsel's address, supported by an affidavit of service, evidences service of a Bill of Costs
  • Review of a costs order requires satisfaction of the conditions in section 80 of the Civil Procedure Act and Order 45 Rules 1, 2 and 3 of the Civil Procedure Rules

Court orders

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  1. 1.The Notice of Motion dated 27th February 2019 is dismissed
  2. 2.Costs of the application awarded to the 3rd Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 10
  • Civil Procedure RulesOrder 45 Rules 1, 2 and 3
  • Civil Procedure Actsection 27(1)
  • Civil Procedure Actsection 80
  • Land Disputes Tribunal Actrepeal (2012)

Cases cited (2)

  • Southern Engineering Co Limited v Heady Berge Limited & Another
    [2019] eKLR
  • Atulkumar Maganlal Shah v Investments and Mortgages Bank Limited & 2 Others Civil Appeal No. 13 of 2001 consolidated with Vipin Maganlal Shah v Investments and Mortgages Bank Limited & 2 Others Civil Appeal No. 19 of 2001
    [2001] KLR 190
Jurisdiction invoked
Inherent jurisdiction of the High Court over taxation of costs; review under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules

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, "Republic v Chairman Provincial Land Disputes Tribunal Committee & 2 others Ex-Parte Ledama Lelei [2019] KEELC 1898 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1898/eng@2019-07-03

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