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ELCDismissedNot stated in the excerpt (orig. suit by plaint dated April 9, 2021, amended June 16, 2022)· [2023] KEELC 317 (KLR)

Colti Construction Co. Ltd v Cigma Business Centre Ltd & 2 others; Kabucho (Applicant); Muraguri (Respondent) (Environment & Land Case E012 of 2021) [2023] KEELC 317 (KLR)

Environment and Land Court of Kenya
19 January 2023
2,592 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 party's bid to reverse a costs award, confirming review applications must be filed promptly and ignored unanswered demand letters.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nyahururu (Y. M. Angima, J) determined an application by the Plaintiff for review and setting aside of an order made on January 26, 2022 awarding the 1st Defendant (the Respondent, John Mwangi Muraguri) costs after the Plaintiff withdrew its suit against him. The underlying suit concerned alleged unlawful development on LR No. Nyahururu Municipality Block 8/701; the Plaintiff withdrew against the Respondent once it emerged that the plot had always been zoned commercial and the development had been duly approved, with no change of user effected. The Plaintiff contended it had been denied an opportunity to be heard on costs and that the Respondent's failure to answer a demand letter should have cost him his costs. The court framed two issues: whether the conditions for review under Order 45 were satisfied, and who should bear costs of the application. It found the application was filed over six months after the impugned order with no credible explanation, violating the requirement to apply without unreasonable delay. On the merits, the record showed the Plaintiff's advocate holding brief neither sought a date for submissions nor opposed the award of costs, and no affidavit explained the alleged omitted instructions. The court held the Respondent had no obligation to respond to the demand letter since the permitted user was publicly ascertainable, and that costs follow the event under section 27(1) of the Civil Procedure Act. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Conditions for review under Order 45 rule 1 of the Civil Procedure Rules, 2010

Holding

The Plaintiff failed to satisfy the conditions for review: the application was brought with unexplained delay of over six months, and no new matter, error apparent on the face of the record or other sufficient reason was demonstrated

Reasoning

Order 45 rule 1 permits review where there is discovery of new and important matter, an error apparent on the face of the record, or any other sufficient reason, and the application must be made without unreasonable delay. The impugned order was made on January 26, 2022 but the application was only filed on August 3, 2022 with no credible explanation. On the merits, the court found no basis to deprive the successful Respondent of costs.

p. 5
02

Whether denial of an opportunity to be heard on costs justified review

Holding

Rejected. The record showed that when the suit was withdrawn on January 26, 2022, the Plaintiff's advocate did not seek submissions on costs nor oppose the Respondent's prayer for costs; no affidavit was filed by the advocate holding brief to explain the alleged additional instructions

Reasoning

The Plaintiff alleged a violation of its right to a hearing under Article 47 and the Fair Administrative Action Act. The court examined the record and found Mr. Ojare, who held brief, simply applied for withdrawal and made no other application, and did not oppose costs. No affidavit explained why separate instructions could not have been communicated through the holding advocate, so the complaint of denial of hearing was unsupported by the record.

p. 4
03

Whether the Respondent's failure to respond to a demand letter deprived him of costs

Holding

No. Due diligence on permitted user was the Plaintiff's responsibility; information was publicly available and the Respondent owed no duty to assist the Plaintiff's inquiries

Reasoning

Section 27(1) of the Civil Procedure Act provides that costs follow the event unless the court for good reason otherwise orders. The Plaintiff argued the Respondent's silence to the demand letter provoked the suit. The court held the permitted user of the property was ascertainable from government offices, the Respondent had no legal obligation to assist the Plaintiff, and non-reply to a demand letter could not be good reason to deprive a successful party of costs.

p. 4

Legal principles established

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  • An application for review under Order 45 must be filed without unreasonable delay, and unexplained delay of over six months violates that requirement
  • Costs follow the event and a successful party may only be deprived of costs for good reason; a defendant need not respond to a demand letter to avoid liability for costs

Court orders

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  1. 1.The Plaintiff's application filed on August 3, 2022 seeking review of the order of January 26, 2022 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure Act (Cap. 21)Sections 1A, 1B, 3A, 63(e), 80, 27(1)
  • Civil Procedure Rules, 2010Order 45 rule 1; Order 51
  • Constitution of Kenya, 2010Articles 47, 50, 159
  • Fair Administrative Action Act, 2015Not specified

Cases cited (4)

  • Party of Independent Candidates of Kenya and Another v Mutula Kilonzo and 2 Others
    [2013] eKLR
  • Levben Products v Alexander Films (SA) (PTY) Ltd
    1957(4) SA 225(SR) at 227
  • David Kiptum Korir v Kenya Commercial Bank and Another
    [2021] eKLR
  • Hussein Janmohamed and Sons Ltd v Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Sections 1A, 1B, 3A, 63(e) and 80 of the Civil Procedure Act (Cap. 21); Order 45 and Order 51 of the Civil Procedure Rules, 2010; Articles 47, 50 and 159 of the Constitution of Kenya, 2010 (invoked by the applicant)

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, "Colti Construction Co. Ltd v Cigma Business Centre Ltd & 2 others; Kabucho (Applicant); Muraguri (Respondent) (Environment & Land Case E012 of 2021) [2023] KEELC 317 (KLR)", Case Analysis (2023). Not stated in the excerpt (orig. suit by plaint dated April 9, 2021, amended June 16, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/317/eng@2023-01-19

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