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ELCDismissedEnvironment & Land Case E075 of 2021· [2023] KEELC 21104 (KLR)

Rehema Chepkemboi Menjo v Martin L. Mokoosio & Hims Home Limited

Environment and Land Court of Kenya
26 October 2023
1,722 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 refused to change a costs order because the applicant was unhappy with it, not because it contained an error.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kajiado (L.C. Komingoi, J) determined the plaintiff's Notice of Motion dated 9th May 2023 seeking review of the court's order of 26th January 2023, by which the plaintiff's withdrawn suit was marked withdrawn with costs to the defendants, and seeking a stay of taxation of the defendants' Party and Party Bill of Costs pending arbitration of the underlying dispute. The plaintiff argued that the costs awarded related only to a November 2021 application, that the defendants had neither entered appearance nor filed a defence, that the Bill of Costs was excessive and contrary to the Advocates Remuneration Order, and that she would suffer prejudice. The defendants opposed, contending that no mistake or sufficient ground for review existed, that the application invited the court to sit on appeal over its own decision, and that the Taxing Officer had jurisdiction over concerns about the Bill of Costs. The court framed a single issue: whether the application for review was merited. Applying Section 80 of the Civil Procedure Act and Order 45, and relying on the Supreme Court decisions in Fredrick Outa and Robert Kibisu, the court held that review is confined to correcting errors apparent on the face of the record; the plaintiff's discontentment with the effect of the order was a matter for appeal, not review. Excessiveness of the Bill of Costs was for taxation, with a reference available thereafter. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the order awarding costs to the Defendants upon withdrawal of the suit should be reviewed

Holding

The application for review failed; the plaintiff sought to alter the order due to its effect and her discontentment, which is not a ground for review

Reasoning

The court restated the grounds for review under Section 80 of the Civil Procedure Act and Order 45 rule 1, relying on Supreme Court authority that the Slip Rule does not permit a court to sit on appeal over its own judgment. The plaintiff's complaint went to the effect of the order and her dissatisfaction with it, which are matters for appeal. There was also a proper forum - taxation - for contesting the Bill of Costs.

p. 4
02

Whether taxation of the Defendants' Bill of Costs should be stayed pending arbitration

Holding

Stay refused; the taxation forum is where excessiveness of the Bill of Costs should be contested, with a reference available if aggrieved

Reasoning

The court held that the plaintiff had a proper forum before the Taxing Officer to argue the excessiveness of the Bill of Costs, and could thereafter file a reference if dissatisfied. Seeking review of the costs order and a stay of taxation before that process was, in the court's view, putting the cart before the horse.

p. 4

Legal principles established

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  • Review lies only on the grounds in Section 80 CPA and Order 45 rule 1: discovery of new and important matter, error apparent on the face of the record, or other sufficient reason, without unreasonable delay
  • A court cannot sit on appeal over its own decision; dissatisfaction with a court's finding or the effect of its order is a ground for appeal, not review
  • Where there is no sufficient ground for review, the court shall dismiss the application under Order 45 rule 3(1)

Court orders

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  1. 1.The Notice of Motion dated 9th May 2023 seeking review of the order of 26th January 2023 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45, rule 1
  • Civil Procedure RulesOrder 45, rule 3(1)
  • Advocates Remuneration Order

Cases cited (6)

  • Paul Mwaniki vs NHIF Board of Management [2020] eKLR
    [2020] eKLR

    No justification for review of a court order

  • Omote & Another vs Ogutu [2022] KEHC 16441 (KLR)
    [2022] KEHC 16441 (KLR)

    Application amounting to asking the court to sit on its own appeal against award of costs

  • DGM vs EWG [2021] eKLR
    [2021] eKLR

    Expenses incurred as a result of the plaintiff's rush to court

  • Republic v Cabinet Secretary for Interior and Co-ordination of National Government Ex parte Abulahi Said Salad [2019] eKLR
    [2019] eKLR

    Restatement of grounds for review under Section 80 and Order 45

  • Fredrick Otieno Outa v Jared Odoyo Okello & 3 others [2017] eKLR
    [2017] eKLR

    Slip Rule does not confer jurisdiction to sit on appeal over own judgment

  • Robert Tom Martins Kibisu v Republic [2018] eKLR
    [2018] eKLR

    Dissatisfaction with findings is a ground for appeal, not review

Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review 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, "Rehema Chepkemboi Menjo v Martin L. Mokoosio & Hims Home Limited", Case Analysis (2023). Environment & Land Case E075 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21104/eng@2023-10-26

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