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ELCDismissedNot stated on the face of the extract (appeal from Sirisia SPMCC ELC Case No. 17 of 2021)· [2025] KEELC 3107 (KLR)

Maiyebei v Chesebe (Environment and Land Appeal E022 of 2023) [2025] KEELC 3107 (KLR)

Environment and Land Court
27 March 2025
ECE.C. Cherono
860 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Bungoma ruled that a court file sent up on appeal stays there until the appeal ends, and costs can be taxed using a separate file.

What this practically means

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Executive summary

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By Notice of Motion dated 25th November 2024, the Applicant/Respondent, a successful litigant in Sirisia SPM-ELC No. 17 of 2021, sought an order that the original trial court file, forwarded to the Environment and Land Court at Bungoma upon lodging of the Appellant's appeal, be returned to Sirisia Court for assessment of his Bill of costs dated 3/11/2023, plus costs. Supported by affidavits of his advocate and himself, he argued that the certificate of costs is an essential ingredient of the record of appeal and that assessment had stalled for want of the original file. The Appellant opposed, contending the application was aimed at delaying the appeal and executing the trial decree prematurely. Justice E.C. Cherono held that upon lodging an appeal the original file is forwarded to the ELC for admission and directions, and that the court has no power to return the file to the trial court until the appeal is heard and determined. The court noted the Taxing Officer had not stated she could not assess costs without the original file, and that assessment of costs can proceed through a miscellaneous court file. Observing that the appeal, admitted on 10th July 2024, must be determined within one year and that the application appeared geared to slowing its disposal, the court found the application misconceived and lacking in merit. The Notice of Motion was dismissed with costs to the Appellant.

Key legal issues

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01

Whether the ELC may direct return of the original trial file for taxation of costs pending appeal

Holding

The application was misconceived; the court lacks power to return the file and taxation can proceed by miscellaneous file

Reasoning

The court explained the practice whereby on lodging a memorandum of appeal the Deputy Registrar requests the trial station's Executive Officer to forward the original file for directions and admission. No statutory power permits its return before determination of the appeal. The Taxing Officer had not stated she could not assess costs without the original file, so no prejudice was demonstrated and the application, said to be geared to slowing the appeal, was dismissed.

p. 2

Legal principles established

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  • Once an appeal has been lodged and the original trial file forwarded to the ELC, the court has no power to return the file to the trial court until the appeal is heard and determined
  • Assessment of costs need not await return of the original court file; it can be done through a miscellaneous court file

Court orders

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  1. 1.The Notice of Motion application dated 25th November 2024 is dismissed
  2. 2.Costs of the application to the Appellant

Authorities

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Legislation

  • Civil Procedure ActSections 3 and 3A
On appeal from
Sirisia Law Courts (Principal Magistrate's Court)
Sirisia SPMCC ELC Case No. 17 of 2021
Jurisdiction invoked
Sections 3 and 3A of the Civil Procedure Act (inherent powers of the court)

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, "Maiyebei v Chesebe (Environment and Land Appeal E022 of 2023) [2025] KEELC 3107 (KLR)", Case Analysis (2025). Not stated on the face of the extract (appeal from Sirisia SPMCC ELC Case No. 17 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3107/eng@2025-03-27

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