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ELCDismissedJudicial Review Application dated 20th June, 2023· [2024] KEELC 6525 (KLR)

Republic v National Land Commission & 6 others; Tunoi (Exparte Applicant) (Environment and Land Judicial Review Miscellaneous Application 7 of 2019) [2024] KEELC 6525 (KLR)

High Court of Kenya at Eldoret
8 October 2024
5,415 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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The High Court in Eldoret dismissed an attempt to delay and share out a costs bill, confirming each losing party can be made to pay the entire amount.

What this practically means

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Executive summary

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The 1st, 3rd, 4th and 6th Interested Parties (Applicants) moved the court by a Notice of Motion dated 20th June 2023 seeking stay of execution of the decree and certificate of costs, an interpretation of the judgment of 16th April 2020 on the question of costs, and a review apportioning costs between the National Land Commission and the seven Interested Parties. Their application followed the taxation of the Ex Parte Applicant's Bill of Costs at Kshs 1,271,020/- and the subsequent issuance of warrants of attachment and proclamation notices against their properties. The Respondent opposed, arguing the application was an afterthought brought over three years late, that the court was functus officio, and that liability for costs was joint and several, permitting recovery from any party. The NLC also opposed, citing inordinate delay and want of security. Framing three issues - jurisdiction to interpret its own judgment, review, and stay of execution - the court held it had no jurisdiction to interpret its own judgment, the court having become functus officio upon delivery of judgment. It found that where several parties are condemned to pay costs without express apportionment, liability is joint and several, so the decree holder could recover the full amount from any of them, subject to a right of contribution. No error on the face of the record justified review, and the Applicants' appeal to the Court of Appeal further barred review. On stay, Order 22 Rule 25 required the pending suit (Eldoret ELC No. E039 of 2021) to be between judgment debtor and decree holder; the Applicants were not parties to that suit, Kaptukuk Farm Limited being a separate legal entity. Execution levied within a year of taxation did not require a Notice to Show Cause. The application was dismissed with costs to the Ex-parte Applicant/Respondent.

Key legal issues

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01

Whether the court can interpret its own judgment as to costs

Holding

The court has no jurisdiction to interpret its own judgment; it invoked inherent powers only to check for clarification, and found none

Reasoning

Relying on the Supreme Court's decision in Cogno Ventures, the court held that once judgment issues the court is functus officio. However, it invoked inherent powers to examine whether the costs order needed clarification, and concluded the order that the 1st Respondent and 1st to 7th Interested Parties pay costs imposed joint and several liability, so no clarification was necessary.

p. 5
02

Whether the failure to apportion costs was an error on the face of the record justifying review

Holding

No; liability was joint and several, and the decree holder may recover the entire amount from any one of the parties held liable

Reasoning

The court explained joint and several liability: each liable party is individually responsible for the entire obligation but may seek reimbursement from co-debtors. The Proclamation Notices showed amounts not exceeding each party's share, and in any event the Respondent could recover the whole from the Applicants. No error apparent on the face of the record or other sufficient reason for review under Section 80 and Order 45 was established; moreover, the Applicants had appealed to the Court of Appeal.

p. 8
03

Whether stay of execution pending Eldoret ELC Case No. E039 of 2021 could issue under Order 22 Rule 25

Holding

No; the pending suit must be between the judgment debtor and the decree holder, and the Applicants are not parties to that suit

Reasoning

Kaptukuk Farm Limited, the plaintiff in the pending suit, is a limited company with a separate legal personality from its members; no prayer was made to lift the veil of incorporation. The pending suit also bears no connection to the recovery of costs in this concluded suit. Further, execution was levied within one year of the taxation ruling, so the Order 22 Rule 18 notice requirement did not apply.

p. 9

Legal principles established

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  • A court has no jurisdiction to interpret its own judgment; upon delivery of judgment the court becomes functus officio, save for review as permitted by statute
  • Where a court finds several defendants or respondents liable for costs and does not expressly state otherwise, liability is joint and several, entitling the decree holder to recover the full amount from any one of them, with a right of contribution from co-debtors
  • A company is a separate legal entity distinct from its members; shareholders cannot claim to be parties to a suit filed by the company absent a lifting of the veil
  • Order 22 Rule 18 notice to show cause applies only where execution is sought more than one year after the decree

Court orders

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  1. 1.The application dated 20th June, 2023 is dismissed
  2. 2.Costs of the application awarded to the Ex-parte Applicant/Respondent
Jurisdiction invoked
Sections 1A, 1B, 3A and 80 of the Civil Procedure Act; Orders 22 and 45 of the Civil Procedure Rules

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, "Republic v National Land Commission & 6 others; Tunoi (Exparte Applicant) (Environment and Land Judicial Review Miscellaneous Application 7 of 2019) [2024] KEELC 6525 (KLR)", Case Analysis (2024). Judicial Review Application dated 20th June, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6525/eng@2024-10-08

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