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ELCPartially AllowedEnvironment & Land Case 18 of 2021· [2023] KEELC 580 (KLR)

Kitheka v Mwova & 3 others (Environment & Land Case 18 of 2021) (3 February 2023) (Directions) [2023] KEELC 580 (KLR)

Environment and Land Court
3 February 2023
1,601 words in judgment
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The bottom line

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Kenya's Environment and Land Court set aside a costs ruling because the judge taxed the bill without reading one side's filed submissions.

What this practically means

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Executive summary

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This ruling comprises directions issued by the Environment and Land Court at Kitui in a complaint by the plaintiff, Kilonzo Kitheka, acting in person and through counsel Mr. Mwendwa, arising from the taxation of the 1st defendant's bill of costs. After the plaintiff withdrew his suit and costs were awarded to the 1st defendant, both parties filed bills of costs and written submissions. The plaintiff complained that his bill of costs and submissions were removed from the court file, that the file went missing, and that the Deputy Registrar's taxation ruling of June 15, 2022 was delivered without considering his submissions. The Deputy Registrar responded that no other bill of costs was pending and the file had not been reported missing. Upon investigation, including presentations by the Deputy Registrar and registry staff and a perusal of the court file, the judge found that the plaintiff had filed his submissions and Party & Party Bill of Costs on April 27, 2022 (outside the time given, but the lateness was never raised), that the documents were returned to his advocates after the matter was reserved for ruling, and that the submissions were not considered during taxation - a failure held to be unfair, unjust and prejudicial. Invoking supervisory jurisdiction under Article 165(6) and (7) of the Constitution, the court reviewed and set aside the taxation of the 1st defendant's bill of costs dated March 4, 2022, remitted the bill to the Deputy Registrar ELC for re-taxation considering both counsels' submissions, and fixed a mention for directions. The court declined to appoint an alternative Deputy Registrar and made no costs order.

Key legal issues

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01

Whether the taxation ruling could stand where the plaintiff's filed submissions were not considered

Holding

The taxation orders were reviewed and set aside and the bill remitted for re-taxation considering both parties' submissions

Reasoning

The court found the plaintiff's submissions and bill of costs were properly filed on April 27, 2022, albeit late, but lateness was never raised or addressed. The submissions were returned to counsel and not considered during taxation. This omission was unfair, unjust and prejudicial, warranting supervisory intervention to ensure fair administration of justice.

p. 3
02

Whether an audit or reassignment of the Deputy Registrar was warranted

Holding

Reassignment refused; the same Deputy Registrar may conduct the re-taxation

Reasoning

The court investigated the complaint with presentations from the Deputy Registrar and registry staff. It found explanations sufficient and no good reason to appoint a different Deputy Registrar, confining the remedy to setting aside the taxation and remitting the bill for re-taxation.

p. 4

Legal principles established

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  • A superior court may invoke supervisory jurisdiction under Article 165(6) and (7) to review the exercise of a quasi-judicial function, including taxation of costs, to ensure the fair administration of justice
  • Failure to consider written submissions already properly filed before a matter was reserved for ruling in taxation proceedings is unfair, unjust and prejudicial

Court orders

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  1. 1.The orders of taxation of the 1st defendant's bill of costs dated March 4, 2022 be and are hereby reviewed and/or set aside
  2. 2.The bill of costs be remitted back to the Deputy Registrar ELC for re-taxation, taking into consideration the written submissions by both Counsel
  3. 3.The matter be mentioned on February 22, 2023 before the Deputy Registrar for directions on re-taxation and taxation of the plaintiff's bill of costs

Authorities

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Legislation

  • Constitution of Kenya 2010Article 165(6) and (7)
Jurisdiction invoked
Article 165(6) and (7) of the Constitution of Kenya 2010 (supervisory jurisdiction)

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, "Kitheka v Mwova & 3 others (Environment & Land Case 18 of 2021)  (3 February 2023) (Directions) [2023] KEELC 580 (KLR)", Case Analysis (2023). Environment & Land Case 18 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/580/eng@2023-02-03

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