Bhavasar Andandkumar t/a Sarax Enterprises v Beiloilco Holdings Limited, Registrar of Titles Mombasa, OCS Kilifi, Attorney General & Koceyo O Titus (Environment & Land Case 23 of 2017) [2021] KEELC 4297 (KLR)
The bottom line
#A Kenyan court dismissed an advocate's attempt to overturn a personal costs order, confirming that fraudulent litigation attracts costs without formal joinder.
What this practically means
#Executive summary
#Key legal issues
#What constitutes an error apparent on the face of the record for purposes of review
An error apparent on the face of the record is one that stares one in the face on a substantial point of law with no possibility of two opinions; a merely erroneous decision is not a ground for review
The court adopted the test in Muyodi vs ICDC, quoting Nyamogo & Nyamogo vs Kogo: the distinction lies between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law admits of no two opinions, review lies; a wrong view of the law is a ground for appeal, not review. The Applicant's grievance that the Court granted an 'omnibus application with unsupported prayers' fell on the appeal side of the line.
Whether the order of costs against the Applicant could stand where he was never enjoined as a party
The order of costs was justified because the Court found the Applicant had fraudulently filed the Petition in the name of or in collusion with Moitalel Ole Kenta & Company Advocates, and joinder was not necessary before ordering such an Advocate to pay costs
The 1st Respondent's application of 27th November 2017 expressly sought costs against the Applicant at Prayer (h); he and his firm attended court to oppose it and filed a preliminary objection challenging it, so he was aware of the claim against him. The Court's Ruling of 28th June 2018 found the Petition had been fraudulently filed by the Applicant, providing the basis for the costs order.
Legal principles established
#- A court may impose costs on an Advocate who filed a suit without instructions in the name of another party and relying on fraudulent documents without first enjoining him as a party
- A complaint that a court allowed an application without evidence or with unsupported prayers is a ground of appeal, not a ground for review
Court orders
#- 1.The Notice of Motion dated 27th September 2019 is dismissed with costs to the 1st Respondent
- Jurisdiction invoked
- Order 45 Rule 1 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bhavasar Andandkumar t/a Sarax Enterprises v Beiloilco Holdings Limited, Registrar of Titles Mombasa, OCS Kilifi, Attorney General & Koceyo O Titus (Environment & Land Case 23 of 2017) [2021] KEELC 4297 (KLR)", Case Analysis (2021). Not stated in judgment (Notice of Motion dated 27th September 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4297/eng@2021-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.