Hanos (K) Ltd & another v Mohanlal Nemchand Shah & 2 others; C.B. Gor & Gor & Advocates (Interested Party) [2021] KEELC 727 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that a consent order for costs can be enforced for 12 years, not 6, so a decade-old costs claim was valid.
What this practically means
#Executive summary
#Key legal issues
#Threshold of a preliminary objection
The preliminary objection met the legal threshold as it raised pure matters of law and was raised without inordinate delay.
The court adopted the Mukisa Biscuits definition that a preliminary objection raises a pure point of law on assumed facts. The objection was raised on 29th January 2020 immediately after transfer of the suit to the ELC, so there was no inordinate delay, and the issues were serious matters of law requiring determination.
Limitation applicable to enforcement of a consent order for costs
A consent order is a court order, not a contract; enforcement is governed by the 12-year period under Section 4(4) of the Limitation of Actions Act, and the Bill of Costs filed on 16th December 2019 was within time.
The Respondents argued the consent order was a contract subject to the 6-year limit in Section 4(1)(e). The court held consent orders emanate from judgments, awards, orders or decrees and are enforceable unless set aside, reviewed or appealed against. The consent order of 3rd December 2009 was never challenged, and enforcement within about ten years fell within the 12-year period under Section 4(4).
Entitlement to costs upon withdrawal of suit
The 3rd Defendant/Applicant was entitled to the costs ordered by the High Court upon the Plaintiffs' withdrawal of the suit, and the taxing directions could issue from the ELC.
The court traced the principles on costs under Section 27(1) of the Civil Procedure Act, noting costs follow the event and are discretionary. Having withdrawn the suit with an order for costs, and the consent order remaining unchallenged, the applicant was entitled to have the Bill of Costs taxed and certified by a Taxing Officer of the Environment and Land Court.
Legal principles established
#- A consent order is a court order like any other and is not a contract; its enforcement is governed by the 12-year limitation period for actions on judgments under Section 4(4) of the Limitation of Actions Act
- A proper preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct
Court orders
#- 1.Prayers numbers 4 and 5 of the Notice of Motion application dated 24th October 2019 by the Defendant/Applicant allowed
- 2.As ordered by the High Court in HCCC (Mombasa) Misc. Civil Application No. 409 (OS) of 2003 by Justice Azangalala on 14th October 2009, the estate of the Plaintiffs/Respondents to pay the Defendant/Applicant the costs of the suit to be taxed and certified by a Taxing Officer of the Environment and Land Court
- 3.The Grounds of opposition dated 28th November 2019 and the Preliminary Objection dated 29th January 2020 dismissed
- 4.Each party to bear their own costs
- Jurisdiction invoked
- Sections 1, 1A, 3 and 3A of the Civil Procedure Act, Section 3 of the Environment and Land Court Act No. 19 of 2012 and Article 159 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hanos (K) Ltd & another v Mohanlal Nemchand Shah & 2 others; C.B. Gor & Gor & Advocates (Interested Party) [2021] KEELC 727 (KLR)", Case Analysis (2021). HCCC (Mombasa) Miscellaneous Civil Application No. 409 (OS) of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/727/eng@2021-11-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.