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ELCDismissedNot stated in judgment (application dated 19th August, 2019)· [2020] KEELC 3795 (KLR)

Benard Kibet Rono (Suing as the legal representative of the Estate of the late Eunice Chepngetich Ngasura (Deceased) v Tapnyobii Chebii Ngasura & another [2020] KEELC 3795 (KLR)

Environment and Land Court
6 February 2020
5,001 words in judgment
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The bottom line

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The Environment and Land Court in Kericho dismissed debtors' attempt to overturn execution orders, confirming that taxed costs can be enforced without a separate decree and appeal and review cannot run together.

What this practically means

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Executive summary

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The applicants, defendants and judgment debtors in a concluded land suit in which judgment was delivered on 16th May, 2018, filed a notice of motion dated 19th August, 2019 seeking, inter alia, leave for new advocates to come on record, review and setting aside of orders of 11th July, 2018, 18th July, 2019 and 15th August, 2019 (including discharge of the 1st applicant from civil jail), cancellation of titles Kericho/Silibwet/5243 and 5244, stay of execution pending a Court of Appeal application, or alternatively payment by instalments. They argued they were never served with the notice to show cause, that the certificate of taxation was never converted into a decree, that their former advocate's mistakes should not be visited on them, and that the respondent's replying affidavit was procured in conflict of interest. The respondent countered that the applicants were duly served, that party and party costs require no separate decree, that the application was an abuse of process inviting the court to sit on appeal over its own decisions, and that the applicants were simultaneously pursuing an appeal. The court found service was acknowledged on the record, held Section 51(2) of the Advocates Act applies only to advocate/client costs and that taxed party and party costs require no separate decree, distinguished the advocate's-mistake authorities, held appeal and review mutually exclusive, and rejected the conflict-of-interest claim. The application was dismissed with costs.

Key legal issues

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01

Whether review was merited on the ground of non-service and lack of a decree for costs

Holding

Review was refused: the applicants were in fact served with the notice to show cause and no separate decree was required for party and party costs

Reasoning

The record showed service of the notice to show cause on the applicants on 20th May, 2019, with acknowledgment. On costs, the court held that Section 51(2) of the Advocates Act applies only to advocate/client bills, and Order 21 rule 9 permits taxed party and party costs to be stated in a certificate; a further decree would be superfluous. The premises of the review application therefore failed.

p. 4
02

Whether the mistake of the former advocate should be visited on the applicants

Holding

No; the record showed the advocate was actively involved and the applicants themselves went to sleep after judgment

Reasoning

The court reviewed the record and found the former counsel participated in proceedings before and after judgment, including attending the notice to show cause. The jurisprudence that an advocate's mistakes are not always excusable shows the principle is not iron-clad; justice determines the outcome. The applicants only stirred on the reality of execution.

p. 5
03

Whether pursuing an appeal and a review application simultaneously was proper

Holding

The two remedies are mutually exclusive; the applicants were playing ping-pong with the judicial process

Reasoning

The applicants had already gone to the Court of Appeal seeking leave to appeal out of time while filing a review application in this court. The court held that opting for appeal forfeits the right of review and vice versa. Simultaneous pursuit in two fora was condemned as unacceptable.

p. 5
04

Whether the replying affidavit should be expunged for conflict of interest

Holding

No; the former counsel had already been replaced by the present counsel when he commissioned the affidavit

Reasoning

The memorandum of appeal dated 29th May, 2018 showed the current counsel had taken over from the former counsel. The replying affidavit itself indicated it was to be served on the present counsel. The former counsel therefore acted outside the matter when he commissioned the affidavit, and the allegation of conflict was baseless.

p. 5

Legal principles established

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  • Section 51(2) of the Advocates Act concerns advocate/client costs and has no application to party and party costs, which do not require conversion of a certificate of taxation into a separate decree before execution
  • The right of appeal and the right of review are mutually exclusive; a litigant cannot pursue both simultaneously
  • The principle that an advocate's mistake should not be visited on the client is not iron-clad; it depends on the imperatives of justice
  • Costs assessed after a decree is drawn are shown in a certificate of costs signed by the taxing officer, while costs assessed before the decree is drawn are stated in the decree itself

Court orders

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  1. 1.The application dated 19th August, 2019 is dismissed with costs

Authorities

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Legislation

  • Advocates Act (cap 16)Section 51(2)
  • Advocates (Remuneration) OrderSection 68A
  • Civil Procedure Act (cap 21)Sections 3A, 63, 80
  • Civil Procedure Rules, 2010Order 11(3)(1)(h), Order 9, Order 10 Rule 1, Order 21 Rules 9, 12, Order 22 Rules 7, 13, 22(1), 49, Order 42 Rule 6(1), Order 45, Order 51 Rules 1, 3, 10
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 20, 21(1)(2), 24, 25

Cases cited (8)

  • Rubo Kimngetich Arap Cheruiyot v Peter Kiprop Rotich
    HCC No. 133 of 1993, Eldoret
  • Christine Andree Joshi & 2 Others v Sally Chepwogen
    ELC No. 6 of 2014, Kericho
  • Anthony Gachara Ayob v Francis Mahinda Thinwa
    CA No. 92 of 2008
  • Draft & Develop Engineers v National Water Conservation and Pipeline Corporation
    Civil Case No. 11/2011
  • National Bank of Kenya Limited v Ndungu Njau
    CA No. 21 of 1996
  • Gerald Mwithya v Meru College of Technology
    (2018) eKLR
  • Joshphat Nderitu Kariuki v Pine Breeze Hospital Ltd
    (2006) eKLR
  • Water Partners International v Benjamin Koyoo t/a Group of Women in Agriculture – Kochieng (GWAKO) Ministries
    (2014) eKLR
Jurisdiction invoked
Sections 3A and 63 of the Civil Procedure Act (cap 21) and Order 45 of the Civil Procedure Rules, 2010 (review/set aside of execution orders in a concluded suit)

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, "Benard Kibet Rono (Suing as the legal representative of the Estate of the late Eunice Chepngetich Ngasura (Deceased) v Tapnyobii Chebii Ngasura & another [2020] KEELC 3795 (KLR)", Case Analysis (2020). Not stated in judgment (application dated 19th August, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3795/eng@2020-02-06

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