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ELCDismissedNot stated in the judgment· [2022] KEELC 3085 (KLR)

Odongo v Attorney General & 2 others (Environment & Land Case 57 of 2021) [2022] KEELC 3085 (KLR)

Environment and Land Court
5 May 2022
AKA. Y. Koross
1,516 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a request to undo a costs order, confirming that disagreeing with a judge on costs means appealing, not asking for review.

What this practically means

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Executive summary

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The plaintiff's suit had been reinstated by a ruling of the Environment and Land Court at Siaya dated 27/01/2022, on conditions including payment of throw away costs of Ksh 20,000 to the 1st and 2nd defendants within 21 days. Rather than pay, the plaintiff moved the court by a Notice of Motion dated 8/02/2022 under Order 45 and Order 51 of the Civil Procedure Rules and Sections 1A, 1B, 3, 3A and 80 of the Civil Procedure Act, seeking review, setting aside or variation of the 27/01/2022 orders, in particular the costs order, and leave to prosecute his suit without paying costs. He argued he was financially incapacitated, that the 2nd defendant never participated in the proceedings and was represented by the 1st defendant, and that the defendants were government agencies not financially strained, invoking Article 48 on access to justice. The defendants opposed, contending there was no error apparent on the face of the record and that the plaintiff had not proved inability to pay under Section 107 of the Evidence Act. Koross J found prayer 2 composite, vague and ambiguous and incapable of being granted, with prayer 3 falling with it. On the merits, the court held the throw away costs compensated the defendants for the inconvenience of reinstatement, that public bodies are entitled to costs like any other party, and that the plaintiff's dissatisfaction with the costs finding was a ground of appeal, not review; hence there was no error apparent on the face of the record. The motion was dismissed with costs to the 1st and 2nd defendants.

Key legal issues

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01

Whether the order awarding throw away costs contained an error apparent on the face of the record justifying review

Holding

No error apparent on the face of the record; the throw away costs were awarded for the inconvenience of reinstatement, and the plaintiff's dissatisfaction is a matter for appeal

Reasoning

The court found the plaintiff misunderstood the ruling: the throw away costs compensated the defendants for the inconvenience of reinstatement, not costs of the dismissed motion. A party discontented with the court's findings on costs should appeal under Section 27 of the Civil Procedure Act; review under Order 45 requires an error apparent on the face of the record, which was not shown.

p. 4
02

Whether prayer 2 of the motion was competent

Holding

Prayer 2 was composite, vague and ambiguous, incapable of being granted, and prayer 3 fell with it

Reasoning

The prayer did not make clear whether the plaintiff sought review of all orders of 27/01/2022 or only the costs order. Courts are bound by pleadings and cannot undertake a fishing expedition to infer a litigant's intent; orders cannot issue in vain.

p. 3

Legal principles established

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  • Dissatisfaction with a court's findings on costs is a ground of appeal, not review
  • Costs follow the event
  • Throw away costs are properly awarded to compensate parties for inconvenience caused by reinstatement of a suit

Court orders

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  1. 1.The Notice of Motion dated 8/02/2022 is dismissed
  2. 2.Costs of the motion awarded to the 1st and 2nd defendants
Jurisdiction invoked
Order 45 Rules 1, 2, 3 and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B, 3, 3A and 80 of the Civil Procedure Act

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, "Odongo v Attorney General & 2 others (Environment & Land Case 57 of 2021) [2022] KEELC 3085 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3085/eng@2022-05-05

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