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ELCPartially AllowedApplication dated 5/10/2021 (ELC suit, Nakuru)· [2021] KEELC 173 (KLR)

Eddah Wanjiru Mburu v Tayari Farmers Co Ltd & another [2021] KEELC 173 (KLR)

Environment and Land Court
15 December 2021
MNMWANGI NJOROGE
816 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled it cannot order a law firm to pay costs unless that firm is properly named as a party and summoned to respond.

What this practically means

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Executive summary

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The plaintiff, administrator of a deceased's estate, applied to be struck out of a suit filed on her behalf in the High Court by Ikua Mwangi & Company Advocates, asserting she had never given instructions to institute it and that the suit property was not listed in the certificate of confirmation of grant dated 3/10/2008. On 19/10/2021 the court, satisfied the applicant and plaintiff were one and the same person, allowed the application in terms of prayers 1 to 4, effectively terminating the suit. What remained was the defendant's demand for costs of the suit. The applicant (now through Polo Kawere & Co. Advocates) submitted that Frank Mwangi & Co Advocates had never been instructed and did not respond to service, citing Section 27 of the Civil Procedure Act and Supermarine Handling Services Ltd v Kenya Revenue Authority. The court held that the law firms had not been enjoined or properly summoned, and that Article 50 of the Constitution barred any costs order against a non-party; questions about the mutation of the firm into other entities could not be determined in their absence. It further held that the issue of who should pay the costs of the suit was not ripe for determination, and that ordering the defendants to pay costs would be unfair since the unauthorized filing was not their fault. The court confined itself to prayer (5) of the application and ordered each party to bear their own costs of the application. Judgment delivered at Nakuru via electronic mail on 15 December 2021 by Mwangi Njoroge J.

Key legal issues

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01

Whether costs could be awarded against the law firm that allegedly filed the suit without instructions

Holding

No - the firm was not a party to the application and had not been properly summoned, so no costs order could be made against it

Reasoning

Article 50 of the Constitution guarantees a fair hearing before an impartial tribunal. The applicant and defendants were properly before the court, but the legal firms mentioned were never summoned to answer any issue or claim. The application did not enjoin the firm nor seek costs from it, and questions about mutation of Ikua Mwangi & Co Advocates into other entities could not be determined absent those parties.

p. 2
02

Whether the defendants should bear costs of the application

Holding

Ordering the defendants to pay costs would be unfair since the unauthorized filing of the suit was not their fault; the court instead limited itself to prayer (5)

Reasoning

The court noted that if the plaintiff never instructed anyone to file the suit, the defendants were not at fault for the allegedly unauthorized filing. Awarding them costs of the successful application would be unfair. The court therefore confined itself to prayer (5) and ordered each party to bear their own costs of the application, deferring the broader costs question.

p. 2

Legal principles established

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  • A court cannot order costs against a person or firm who has not been named as a party or properly summoned to respond to an application

Court orders

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  1. 1.The court confined itself to prayer no (5) of the application dated 5/10/2021
  2. 2.Each party to bear their own costs of the said application

Authorities

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Legislation

  • Civil Procedure ActSection 27
  • Constitution of KenyaArticle 50

Cases cited (1)

  • Supermarine Handling Services Ltd Vs Kenya Revenue Authority
    Civil Appeal No 85 of 2006
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; Section 27 of the Civil Procedure Act on costs

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Eddah Wanjiru Mburu v Tayari Farmers Co Ltd & another [2021] KEELC 173 (KLR)", Case Analysis (2021). Application dated 5/10/2021 (ELC suit, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/173/eng@2021-12-15

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