[2021] KEELC 16 (KLR)
The court held that since the judgment on appeal was silent on the issue of costs, and the party and party bill of costs is before the deputy registrar, it is not for the judge to determine the preliminary objection. Instead, the preliminary objection should be placed before the deputy registrar for determination....
Source-derived case information.
- Citation
- [2021] KEELC 16 (KLR)
- Parties
- Appellant: Legio Maria Church of African Mission; Respondent: Melkio Oduor Ogolla
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Appeal 30 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection Regarding Bill of Costs
- Outcome
- Preliminary objection not determined by the judge; matter referred to the deputy registrar.
- Judges
- A Ombwayo
- Legal Topics
- Costs Award, Appeals Procedure, Bill of Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Legio Maria Church of African Mission
Appellant
Melkio Oduor Ogolla
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection Regarding Bill of Costs
Legal Issues
- 1 Whether the party and party bill of costs can be determined by the court when the judgment was silent on costs of the appeal.
- 2 Whether the preliminary objection to the bill of costs should be determined by the judge or the deputy registrar.
Ratio Decidendi
The court held that since the judgment on appeal was silent on the issue of costs, and the party and party bill of costs is before the deputy registrar, it is not for the judge to determine the preliminary objection. Instead, the preliminary objection should be placed before the deputy registrar for determination. The parties are directed to take a hearing date before the deputy registrar for the matter to be addressed appropriately.
Court Disposition
Preliminary objection not determined by the judge; matter referred to the deputy registrar.
Orders
- The preliminary objection to the party and party bill of costs is to be placed before the deputy registrar for determination.
- Parties to take a hearing date before the deputy registrar.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KISUMU
APPEAL CASE NO 30 OF 2018
LEGIO MARIA CHURCH OF AFRICAN MISSION....................................................APPELLANT
VERSUS
MELKIO ODUOR OGOLLA................................................................................1ST RESPONDENT
RULING
On the 5th May 2020, the court found the appeal herein merited but was silent on costs of the appeal and dismissed the suit in the lower court with costs. The appellant filed a party and party bill of costs claiming ksh 200,035. 00. On 29th May 2020 the respondents filed a notice of preliminary objection to the appellants party and party bill of costs dated 9th of May 2020 and filed in court on 11th May 2020 on the basis that the honourable judge did not award costs of the appeal to either party. The judgement was completely silent on the issue of costs of the appeal.
This court observes that the party and party bill of costs is before the deputy registrar and not this court and therefore the preliminary objection should be placed before the deputy registrar for determination. Parties to take a hearing date before the Deputy Registrar.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 7TH DAY OF OCTOBER, 2021
ANTONY OMBWAYO
JUDGE
This Ruling has been delivered to the parties by electronic mail due to measures restricting court operations due to the COVID-19 pandemic and in the light of the directions issued by his Lordship, the Chief Justice on 15th March 2020.
ANTONY OMBWAYO
JUDGE