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ELCDismissed· [2020] KEELC 3984 (KLR)

SBI International Holdings AG (K) v Bore (Environment & Land Case 47 of 2013) [2020] KEELC 3984 (KLR)

Environment and Land Court of Kenya
3 June 2020
3,318 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to erase a judge's remarks about a delaying lawyer and upheld costs awarded against the client.

What this practically means

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Executive summary

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This composite ruling by the Environment and Land Court at Kericho dealt with two applications arising from an ongoing land suit between SBI International Holdings (plaintiff) and Reuben Kipkorir J.T Bore (defendant). One application was by the defendant's counsel, Kiprono Siele Sigira, seeking expungement of remarks made on 19th June 2019 that he was 'deliberately delaying this case'; the other, by the defendant, sought variation of costs orders totalling Kshs. 40,000 awarded on 14th February and 19th June 2019 when adjournments were granted. The plaintiff opposed both, arguing counsel was a stranger to the suit who should have sought joinder, and that costs are awarded at the court's discretion under Section 27 of the Civil Procedure Act. The court rejected the stranger argument, holding that an advocate expressly referred to in proceedings in his professional role need not be enjoined to complain of remarks about him. However, on the merits, the court held the impugned words were an opinion, not a finding, made in the course of case management, and declined as a judge of concurrent jurisdiction to expunge them, describing them as harmless ex-cathedra remarks. On costs, the court found the awards were driven by counsel's failure to communicate adjournment intentions in advance, causing the plaintiff to travel from Nairobi, and that the discretion was judiciously exercised; the objections were afterthoughts never raised when the orders were made. Both applications were dismissed, the first with no order as to costs and the second with costs to the plaintiff.

Key legal issues

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01

Whether defendant's counsel was a stranger to the suit such that he could not apply for expungement

Holding

He was not required to seek joinder; the joinder authorities cited applied to strangers with no prior role, not to counsel with a client-counsel relationship

Reasoning

The joinder cases cited by the plaintiff concerned persons wanting to be enjoined with no prior role in the case. Counsel here had a clear client-counsel relationship, and the impugned remarks expressly referred to him in his professional role. Requiring him to be enjoined or file separate proceedings would multiply proceedings, increase costs and waste judicial time, contrary to the overriding objective.

p. 4
02

Whether the impugned remarks were a 'finding' warranting expungement

Holding

The remarks were an opinion, not a finding; they were made in the course of case management, were based on the record, and were innocuous ex-cathedra remarks

Reasoning

The judge's words were prefaced by 'I am inclined to believe', indicating opinion rather than an unequivocal assertion. They were made during management and control of proceedings, the judge's exclusive domain, not in a formal ruling. A judge of concurrent jurisdiction should be reluctant to expunge such a record, and counsel should tolerate harmless ex-cathedra remarks.

p. 5
03

Whether the costs orders should be varied

Holding

No; costs were awarded for failure to communicate adjournment intentions in time, not merely delay, and the discretion was exercised judiciously

Reasoning

Costs were awarded on each occasion because defendant's counsel failed to inform plaintiff's counsel in advance of intended adjournments, causing the plaintiff to travel from Nairobi ready for hearing. The objections now raised were not raised before the court when the orders were made and are afterthoughts; a text message would have obviated the costs burden. Orders of this nature are a normal wake-up call, not punishment.

p. 6

Legal principles established

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  • An advocate expressly referred to in proceedings may approach the court directly to clear his name without seeking joinder as a party
  • Costs are awarded at the discretion of the court, wide and unfettered, provided the discretion is exercised judiciously
  • A judge of concurrent jurisdiction should be reluctant to expunge remarks made by another judge in the course of managing proceedings

Court orders

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  1. 1.The application dated 9th September 2019 seeking expungement of the court's remarks is dismissed with no order as to costs
  2. 2.The application dated 11th September 2019 seeking variation of the costs orders is dismissed with costs to the plaintiff

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3, 3A, 27, 63(e)
  • Civil Procedure Rules, 2010Order 51 rule 1
  • Environment and Land Court Act, 2011Sections 14 and 19(1), (2) and 3(f)
  • Practice Direction No. 1, Gazette Notice 5178 of 28th July 2014Practice Direction No 1

Cases cited (5)

  • Farah Awad Gullet V CMC Motors Group Limited
    (2018) eKLR
  • Robric Limited & Another Vs Kobil Petroleum Limited & Another
    (2018) eKLR
  • James Koskei Chirchir Vs Chairman Board of Governors Eldoret Polytechnic
    (2011) eKLR
  • Sammy M. Makove, Commissioner of Insurance & Others Vs Kiragu Holdings Limited
    (2013) eKLR
  • Robert Njoka Muthara & Anothers Vs Barclays Bank of Kenya Limited & another
    (2014) eKLR
Jurisdiction invoked
Sections 1A, 1B, 3, 3A, 27 and 63(e) of the Civil Procedure Act (Cap 21); Order 51 rule 1 of the Civil Procedure Rules, 2010; Sections 14 and 19(1), (2) and 3(f) of the Environment and Land Court Act, 2011

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, "SBI International Holdings AG (K) v Bore (Environment & Land Case 47 of 2013) [2020] KEELC 3984 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3984/eng@2020-06-03

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