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ELCDismissedEnvironment & Land Petition 10 of 2017· [2023] KEELC 15970 (KLR)

Mukin Limited v Kenya Electricity Transmission Company

Environment and Land Court
28 February 2023
MGM.N. Gicheru
993 words in judgment
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The bottom line

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Ketraco's attempt to overturn a costs ruling failed because review in Kenya requires an obvious error, not just a disagreement with the decision.

What this practically means

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Executive summary

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This ruling by M.N. Gicheru J of the Environment and Land Court at Kajiado disposes of a Notice of Motion dated January 19, 2022 by Kenya Electricity Transmission Company (Ketraco), brought under Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act. Ketraco sought review or setting aside of orders made on November 10, 2021 by Justice Christine Ochieng, arguing there was an error apparent on the face of the record in that the taxed costs emanated from an advocate-client bill of costs rather than a party-and-party bill and should not be visited upon it. Mukin Limited opposed, contending the application was defective for failure to annex the ruling, was filed out of time, and was a disguised appeal. The court rejected the competence and timeliness objections, holding there is no legal requirement to annex a ruling already on the court record and that time stopped running over the court vacation. On the merits, the court adopted the principle that an error apparent on the face of the record must be obvious and admit of no two opinions, and found that Judge Ochieng had already dealt with the respondent's participation in taxation, estopping it from disowning the process under Rule 11 of the Advocates Remuneration Order. The court further held that the deed of settlement dated April 7, 2017 obliged the respondent to bear the advocate-client costs. The motion was dismissed with costs to the Petitioners.

Key legal issues

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01

Threshold for review under Order 45 Rule 1

Holding

The notice of motion did not meet the threshold; no obvious error made by the court was pointed out and proved.

Reasoning

The applicant argued the taxed costs arose from an advocate-client bill rather than a party-and-party bill. The court found the earlier ruling had fully considered the respondent's participation in the taxation and estopped it under Rule 11 of the Advocates Remuneration Order, so no error stared the court in the face.

02

Competence and timeliness of the application

Holding

Neither defect was made out; annexing the ruling was not legally mandatory and the delay was not established given the court vacation period.

Reasoning

The respondent objected that the ruling was not annexed and that 70 days elapsed before filing. The court held there is no legal requirement to annex a ruling that is already on the court record, and that time stopped running over the late December to early January vacation, negating the delay complaint.

p. 2

Legal principles established

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  • Review under Order 45 requires an error apparent on the face of the record that stares one in the face and admits of no two opinions; a merely possible alternative view is a matter for appeal, not review.
  • A party bound by a deed of settlement may be liable for the other party's advocate-client costs where the consent so provides.

Court orders

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  1. 1.Dismissal of the Notice of Motion dated January 19, 2022
  2. 2.Costs of the application to the Petitioner

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1; Order 45 Rule 1
  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)
  • Advocates Remuneration OrderRule 11

Cases cited (1)

  • Muhammed Mungai versus Ford Kenya Election, and Nominations Board and another
    Miscellaneous Application Number 53 of 2013

    Definition of error apparent on the face of the record - it must stare one in the face with no two opinions possible.

Jurisdiction invoked
Order 45 Rule 1 Civil Procedure Rules; Sections 1A, 1B, 3A and 63(e) 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, "Mukin Limited v Kenya Electricity Transmission Company", Case Analysis (2023). Environment & Land Petition 10 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15970/eng@2023-02-28

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