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ELCPartially AllowedHCCC (Mombasa) Miscellaneous Civil Application No. 409 (OS) of 2003· [2021] KEELC 727 (KLR)

Hanos (K) Ltd & another v Mohanlal Nemchand Shah & 2 others; C.B. Gor & Gor & Advocates (Interested Party) [2021] KEELC 727 (KLR)

Environment and Land Court of Kenya
16 November 2021
5,386 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (Naikuni J) determined a Notice of Motion dated 24th October 2019 by the 3rd Defendant, Dhiren Mohanlal Shah, under Order 9 rule 9 of the Civil Procedure Rules, seeking leave to change advocates and to have his party-and-party Bill of Costs deemed properly filed following the Plaintiffs' withdrawal of an adverse-possession Originating Summons in the High Court in October 2009, when costs were awarded to the Defendants to be taxed. The Plaintiffs opposed, filing grounds of opposition and a preliminary objection contending that the consent order of 3rd December 2009 for costs was time barred under Section 4(1)(e) of the Limitation of Actions Act (six years) and that the ELC lacked jurisdiction over the prayers. The court first held the preliminary objection met the Mukisa Biscuits threshold as a pure point of law raised without delay. On limitation, the court held that a consent order is a court order and not a contract, and that enforcement is governed by the twelve-year period in Section 4(4) of the Limitation of Actions Act; the Bill of Costs filed in December 2019, within about ten years of the costs order, was therefore in time. The court allowed prayers 4 and 5, directed that the estate of the Plaintiffs pay the Defendant's costs of the suit to be taxed and certified by a Taxing Officer of the ELC, dismissed the grounds of opposition and preliminary objection, and ordered each party to bear their own costs. The court relied on the overriding objectives of the Civil Procedure Act, the Environment and Land Court Act and Article 159 of the Constitution to overcome technicalities.

Key legal issues

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01

Threshold of a preliminary objection

Holding

The preliminary objection met the legal threshold as it raised pure matters of law and was raised without inordinate delay.

Reasoning

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.

p. 4
02

Limitation applicable to enforcement of a consent order for costs

Holding

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.

Reasoning

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).

p. 6
03

Entitlement to costs upon withdrawal of suit

Holding

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.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Prayers numbers 4 and 5 of the Notice of Motion application dated 24th October 2019 by the Defendant/Applicant allowed
  2. 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. 3.The Grounds of opposition dated 28th November 2019 and the Preliminary Objection dated 29th January 2020 dismissed
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 9 rule 9
  • Civil Procedure Rules 2010Order 57 Rule 14 (d) (e)
  • Civil Procedure Rules 2010Order 25 (1)
  • Limitation of Actions Act, Cap 22Section 4(1)(e)
  • Limitation of Actions Act, Cap 22Section 4(4)
  • Civil Procedure Act, Cap 21Section 27(1)
  • Civil Procedure Rules 2010Sections 1, 1A, 3 and 3A
  • Environment and Land Court Act, No. 19 of 2012Section 3
  • Environment and Land Court ActSection 14
  • Constitution of KenyaArticle 159
  • Advocates (Remuneration Order)

Cases cited (5)

  • Mukisa Biscuits Manufacturing Co. Ltd –VS- West End Distributors Ltd
    [1969] E.A. 696
  • Attorney General & Another –VS- Andrew Mwaura Githinji & another
    [2016] eKLR
  • Koinange Investments & Development Company Limited – VS- Ian Kahiu Ngethe & 3 Others
    [2015] eKLR
  • Cecilia Karuru Ngaya – Vs – Barclays Bank of Kenya & another
    HCCC (Nyeri) No. 17 of 2014; eKLR (2016)
  • Flora N. Wasike – Vs – Destimo Wamboko
    Court of Appeal (Kisumu) Civil Case No. 81 of 1984
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

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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, "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.