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ELCDismissedNot stated in the extract provided· [2022] KEELC 2652 (KLR)

Mungai v Trade Pan Reality Ltd & 2 others (Environment & Land Case 2755 of 1996) [2022] KEELC 2652 (KLR)

Environment and Land Court
21 July 2022
2,333 words in judgment
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The bottom line

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A Kenyan court refused to review a four-year-old judgment, ruling that a judge's decision not to award costs is an appeal issue, not a review issue.

What this practically means

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Executive summary

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The Plaintiff, Wainaina Kigathi Mungai, moved the court by Notice of Motion dated February 8, 2022 under Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 51 Rule 1 and 42 Rule 6 of the Civil Procedure Rules, 2010, seeking review of the judgment delivered on February 23, 2018 by Justice L. Gacheru, in which both the Plaintiff's suit and the 1st and 2nd Defendants' Counter-Claim were dismissed. The Plaintiff contended that because the Counter-Claim was dismissed in its entirety, the court ought to have expressly awarded him the costs of the Counter-Claim, and that the omission amounted to an error apparent on the face of the record. He said he only noticed the omission while responding to the Defendants' Bill of Costs. There was no response to the application and no submissions were filed. The court framed a sole issue: whether the Applicant had made out a case for review. It first found the application was filed over three years after judgment, an unexplained and unreasonable delay, since counsel was present when judgment was delivered and obtained a copy soon after. On the merits, the court held that under Section 27 of the Civil Procedure Act costs are a matter of judicial discretion; although costs generally follow the event, a judge may depart from that rule, and the failure to award costs is not an error apparent on the face of the record. Whether the discretion was exercised judiciously is a matter for appeal, not review. The application was dismissed with no order as to costs, and the file was closed save for the pending taxation.

Key legal issues

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01

Whether the application for review was brought without unreasonable delay

Holding

The delay of over three years was unreasonable and unexplained, since counsel was present when judgment was delivered and obtained a copy soon thereafter.

Reasoning

The impugned judgment was delivered on 23rd February 2018 and the review application was filed on 8th February 2022, a period in excess of three years. What constitutes unreasonable delay is a question of fact, and an applicant coming to court late must explain the delay. Counsel was present when judgment was read and obtained a copy soon thereafter, so the claim that the omission of costs was only discovered during taxation was implausible.

p. 3
02

Whether the failure to award costs on the dismissed Counter-Claim constituted an error apparent on the face of the record

Holding

No - award of costs is discretionary under Section 27 of the Civil Procedure Act, and the exercise of that discretion is a matter for appeal, not review.

Reasoning

Section 27 of the Civil Procedure Act gives the court full discretion over costs, with the general rule that costs follow the event unless the court orders otherwise for good reason. The Court of Appeal in Supermarine Handling Services and the Ugandan authorities confirm that such discretion must be exercised judiciously but is a discretion nonetheless. A judge may depart from the general rule, so the mere failure to award costs on a dismissed Counter-Claim is not a self-evident error on the face of the record; whether the discretion was exercised judiciously is a matter for appeal.

p. 5

Legal principles established

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  • Costs follow the event but are a matter of judicial discretion; failure to award costs is not an error apparent on the face of the record and is a matter for appeal, not review.
  • An application for review must be made without unreasonable delay, and the burden lies on the applicant to explain the delay.

Court orders

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  1. 1.The Plaintiff's Notice of Motion application dated February 8, 2022 is dismissed with no order as to costs
  2. 2.Other than the pending issue of taxation, the file is closed

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 27(1)
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 45 Rule 1(1)
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Rules, 2010Order 42 Rule 6

Cases cited (9)

  • Benjoh Amalgamated Limited & another vs Kenya Commercial Bank Limited
    [2014] eKLR
  • Francis Origo & another vs Jacob Kumali Mungala
    [2005] eKLR
  • Standard Ltd vs Wilson K. Kalya
    C. A. 306 of 2002 - Nairobi (unreported)
  • Kenya Trypanosomiasis Research Institute vs Anthony Kabimba Gusinjilu (Suing for and on behalf of 112 Plaintiffs)
    [2019] eKLR
  • Muyodi vs Industrial and Commercial Development Corporation & Another
    [2006] 1 EA 243
  • Nyamogo and Nyamogo v Kogo
    [2001] EA 174
  • Apollo Waswa Basude & 2 others (As administrators to the Estate of the late Sepiriya Rosiko) vs Nsabwa Ham
    Civil Appeal No 288 of 2016
  • Impressa Infortunato Federice vs Nabwire
    [2001] 2 EA 383
  • Supermarine Handling Services Ltd vs Kenya Revenue Authority
    [2010] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A and 80 of the Civil Procedure Act and Orders 45, 51 Rule 1 and 42 Rule 6 of the Civil Procedure Rules, 2010

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, "Mungai v Trade Pan Reality Ltd & 2 others (Environment & Land Case 2755 of 1996) [2022] KEELC 2652 (KLR)", Case Analysis (2022). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2652/eng@2022-07-21

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