SBI International Holdings AG (K) v Bore (Environment & Land Case 47 of 2013) [2020] KEELC 3984 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether defendant's counsel was a stranger to the suit such that he could not apply for expungement
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
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.
Whether the impugned remarks were a 'finding' warranting expungement
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
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.
Whether the costs orders should be varied
No; costs were awarded for failure to communicate adjournment intentions in time, not merely delay, and the discretion was exercised judiciously
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.
Legal principles established
#- 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
#- 1.The application dated 9th September 2019 seeking expungement of the court's remarks is dismissed with no order as to costs
- 2.The application dated 11th September 2019 seeking variation of the costs orders is dismissed with costs to the plaintiff
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.