Arch-Diocese of Kisumu Catholic Church v Makodiembo
The bottom line
#A Kenyan court's silence on costs is not a clerical mistake you can fix by review — your remedy is to appeal, not to ask the same court to reconsider.
What this practically means
#Executive summary
#Key legal issues
#Whether omission of a costs order amounts to an accidental slip or omission under section 99 of the Civil Procedure Act
No. Section 99 applies only where the correction gives effect to the court's manifest intention; where the court never applied its mind to costs, there is no error to correct.
Relying on Amritlal Bhamji Davda and Quick Service Stores v Thakra, the court held that where a judge omits to make a costs order without considering costs, there is no error or omission expressing the court's manifest intention - only a lack of exercise of discretion, for which the remedy is appeal or revision, not amendment under the slip rule.
Whether the Respondent's application satisfies the grounds for review under Order 45 of the Civil Procedure Rules
No. The application was premised on an error apparent on the face of the record, but the court found no such error; failure to exercise discretion is not a review ground.
The court set out the review grounds in Order 45 and the requirements in Francis Origo and Kenya Power v Benzene Holdings, and cited John Kamau Ruhangi for the proposition that points outside the purview of review, including erroneous conclusions of law, are grounds of appeal. The alleged error was in truth a non-exercise of discretion, so review failed.
Legal principles established
#- A court's failure to exercise its discretion on costs is not an error arising from accidental slip or omission correctable under section 99 of the Civil Procedure Act; the slip rule only gives effect to the court's manifest intention.
- A judge's failure to exercise discretion is not a ground for review; an erroneous conclusion or failure to consider an issue is a ground of appeal, not review.
Court orders
#- 1.The Notice of Motion application dated February 21, 2023 is dismissed
- 2.No order as to costs of the application
- On appeal from
- Chief Magistrate's Court at Kisumu
- Kisumu CMCELC No 426 of 2018
- Jurisdiction invoked
- Sections 99, 80, 1A and 3A of the Civil Procedure Act; Order 45 Rules 1 and 2 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Arch-Diocese of Kisumu Catholic Church v Makodiembo", Case Analysis (2023). Environment and Land Appeal E008 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18421/eng@2023-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.