Republic v Chairman Provincial Land Disputes Tribunal Committee & 2 others Ex-Parte Ledama Lelei [2019] KEELC 1898 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Validity of an application served in unsigned form
The application is valid because the Notice of Motion filed in court was duly signed; unsigned served copies alone do not invalidate it.
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.
Whether the Certificate of costs should be set aside for non-service of the Bill of Costs
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.
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.
Whether costs should be apportioned among the Respondents
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.
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 27th February 2019 is dismissed
- 2.Costs of the application awarded to the 3rd Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.