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ELCOtherMiscellaneous Application 41 of 2021· [2024] KEELC 1802 (KLR)

Everton Coal Enterprises Limited v Wanjiru Theuri & Company Advocates (Miscellaneous Application 41 of 2021) [2024] KEELC 1802 (KLR)

Environment and Land Court
14 March 2024
BEB M Eboso
795 words in judgment
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The bottom line

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The Environment and Land Court in Thika refused to rule on a bill-of-costs reference because it was filed in the wrong case file, showing correct filing matters.

What this practically means

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Executive summary

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On 27 July 2023 the court, in this miscellaneous application, enlarged time for Everton Coal Enterprises Limited (the client) to lodge a fresh notice of objection to taxation and to file a chamber summons constituting a substantive reference against the advocate's bill of costs, upon payment of throw-away costs of Kshs 50,000. Neither the notice of objection nor the reference was, however, filed in this cause. Instead, the client filed them in a new cause, Thika ELCL Misc Application No E012 of 2023, which counsel irregularly ferried and placed before the Deputy Registrar on 14 August 2023. The Deputy Registrar directed that the Judge determine which of the two files should be the running file, and submissions were thereafter filed and exchanged on the mistaken premise that a reference was pending in Misc 41 of 2021; a ruling date was fixed for 14 March 2024. While preparing the ruling, the court discovered that no reference existed in this cause and that the physical file of E012 of 2023, a cause pending before Kemei J, had been irregularly collapsed into the physical file of Misc 41 of 2021, a cause before Eboso J. The court held the collapsing irregular, vacated the order reserving a ruling date, returned the file to the Registry without a next activity date, and directed that E012 of 2023 be listed before the relevant Judge for disposal directions. No costs order was made.

Key legal issues

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01

Existence of a pending reference in the cause

Holding

No reference was filed in Misc Application No 41 of 2021 despite enlargement of time; hence there is nothing to rule upon.

Reasoning

The court had on 27/7/2023 enlarged time for filing a notice of objection and a reference, but neither was lodged in this suit. The client instead filed them in a new cause, E012 of 2023, which was irregularly placed before the Deputy Registrar and collapsed into this file. The court, when preparing the ruling, discovered the irregularity and vacated the reserved ruling date.

p. 1
02

Irregular collapsing of case files

Holding

The physical file of E012 of 2023, a cause before Kemei J, was irregularly collapsed into the physical file of Misc 41 of 2021, before Eboso J.

Reasoning

The two files exist as distinct causes before different Judges. The client's counsel irregularly ferried the E012 of 2023 file before the Deputy Registrar, and neither advocate disclosed to the Presiding Judge that the notice and reference had been filed as a new cause, leading to directions being issued on the mistaken premise that a reference was pending in this cause.

p. 2

Legal principles established

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  • A cause assigned to one Judge cannot be irregularly collapsed into the file of a cause before another Judge

Court orders

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  1. 1.The order reserving a ruling date in Misc Application No 41 of 2021 is vacated
  2. 2.In the absence of any pending application in the cause, the file to go back to the Registry without a date for the next activity
  3. 3.Thika ELCL Miscellaneous Application No E012 of 2023 to be listed before the relevant Judge for disposal directions
Jurisdiction invoked
Inherent supervisory and case-management jurisdiction of the Environment and Land Court over causes pending before it

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, "Everton Coal Enterprises Limited v Wanjiru Theuri & Company Advocates (Miscellaneous Application 41 of 2021) [2024] KEELC 1802 (KLR)", Case Analysis (2024). Miscellaneous Application 41 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1802/eng@2024-03-14

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