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ELCDismissed· [2024] KEELC 5307 (KLR)

Muriti & another v Kigia (Environment & Land Case E014 of 2022) [2024] KEELC 5307 (KLR)

Environment and Land Court
18 July 2024
2,565 words in judgment
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The bottom line

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The Environment and Land Court in Meru dismissed a bid to reverse a costs order, confirming that review applications must meet strict legal grounds.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Meru (C.K Yano, J) determines the defendant/applicant's notice of motion dated 1st February 2024 seeking, among other things, an ex-parte hearing, correction of the effect of the court's ruling of 14th December 2023 (prayers (c) and (d)) concerning the cost of implementing orders relating to land parcels Abothuguchi/Lower Kaongo/700 and 701, and condemnation of the plaintiffs/respondents to implementation costs said to exceed Kshs. 300,000/=. The application was anchored on Order 51 Rule 1 of the Civil Procedure Rules, Sections 3, 3A and 63(e) of the Civil Procedure Act and Articles 27, 35 and 40 of the Constitution. The respondents opposed through a replying affidavit sworn by Josphat Muriungi Muriti, describing the application as sham, vexatious and unintelligible, and relying on the principle that he who alleges must prove. The court found the application unintelligible but construed it as one seeking review of the ruling of 14th December 2023, which had declined most of the applicant's prayers in his application dated 6th July 2023 while allowing a site visit, with costs of the site visit and application awarded to the respondents. Applying Section 80 of the Civil Procedure Act and Order 45, and Section 27 on costs, the court held that the prerequisites for review were not met: no new matter, error apparent on the face of the record or sufficient cause was shown. The court affirmed its earlier discretionary award of costs, reasoning that the applicant's application was largely unsuccessful and the site visit was sought by the applicant. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the application qualified as a review under Section 80 CPA and Order 45 CPR

Holding

The unintelligible application was construed as one for review of the ruling of 14th December 2023 on costs, but the prerequisites in Order 45 were not met

Reasoning

The court found the application unintelligible but read it as seeking review of the costs orders in prayers (c) and (d) of the ruling of 14th December 2023. Section 80 gives the power of review and Order 45 restricts the grounds to new and important matter, error apparent on the face of the record, or other sufficient reason, applied for without unreasonable delay. The applicant demonstrated none of these grounds.

p. 5
02

Whether the costs awarded in the ruling of 14th December 2023 should be shifted to the respondent

Holding

No; the discretion on costs was properly exercised since the applicant's application of 6th July 2023 was largely unsuccessful and the site visit was sought by the applicant

Reasoning

Under Section 27 of the Civil Procedure Act, costs follow the event unless the court directs otherwise for good reason. The applicant's application was largely dismissed; costs were awarded as compensation to the respondents for defending it. As the applicant sought the site visit over the respondents' opposition, it was fair that he bear its costs. No good reason to depart from that exercise of discretion was shown.

p. 5

Legal principles established

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  • Costs of and incidental to suits are at the discretion of the court and costs follow the event unless the court for good reason otherwise directs
  • Grounds for review are restricted to discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason, and must be made without unreasonable delay
  • A party who seeks an order (such as a site visit) which is opposed should bear the costs of that order where the prayer succeeds but the application is largely unsuccessful

Court orders

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  1. 1.The application dated 1st February, 2024 is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Rules, 2010Order 45 Rule 1
  • Civil Procedure Act, Chapter 4 (Cap 21)Sections 3, 3A, 63(e)
  • Civil Procedure Act, Cap 21Section 80
  • Civil Procedure Act, Cap 21Section 27
  • Constitution of Kenya, 2010Articles 10, 27, 35 and 40 (Chapter 4 Bill of Rights)

Cases cited (3)

  • Mary Wambui Kabguo Vs Kenya Bus Service Limited
    [1997] eKLR
  • Republic V Public Procurement Administrative Review Board & 2 others
    [2018] eKLR
  • Jasbir Rai & 3 others V Torlochan Rai & 4 others
    [2014] eKLR
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010 (application brought under Order 51 Rule 1, Sections 3, 3A and 63(e) of the Civil Procedure Act and Articles 27, 35 and 40 of the Constitution of Kenya, 2010)

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, "Muriti & another v Kigia (Environment & Land Case E014 of 2022) [2024] KEELC 5307 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5307/eng@2024-07-18

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