Mungai v Trade Pan Reality Ltd & 2 others (Environment & Land Case 2755 of 1996) [2022] KEELC 2652 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the application for review was brought without unreasonable delay
The delay of over three years was unreasonable and unexplained, since counsel was present when judgment was delivered and obtained a copy soon thereafter.
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.
Whether the failure to award costs on the dismissed Counter-Claim constituted an error apparent on the face of the record
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.
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.
Legal principles established
#- 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
#- 1.The Plaintiff's Notice of Motion application dated February 8, 2022 is dismissed with no order as to costs
- 2.Other than the pending issue of taxation, the file is closed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.