https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4132

Odongo v National Environment Management Authority & another (Environment and Land Appeal E036 of 2025) [2026] KEELC 4132 (KLR) (29 June 2026) (Judgment) Neutral citation: [2026] KEELC 4132 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Environment and Land Appeal E036 of 2025 MN Mwanyale, J June 29, 2026 Between Oscar Otieno Odongo Appellant and National Environment Management Authority 1st Respondent Kibos Power Limited 2nd Respondent Judgment 1.Being dissatisfied by the Ruling and Order of Hon. Maureen Nyigei (DR) delivered on 17.04.2025, in Kisumu ELC Misc. Application No. E001 of 2024 between Oscar Otieno Odongo T/a Odongo Investment Auctioneers and National Environment Management Authority and Kibos Power Limited, in respect of an auctioneers Bill of costs the Appellant Oscar Otieno Odongo filed the Memorandum of Appeal dated 16th of May 2025 pursuant to leave granted on 17.04.2025, and sought the following reliefs;a.The Ruling and order of the Learned Deputy Registrar dated 17.04.2025 be set aside, varied and/or reviewed by allowing the Notice of Motion Application dated 18.10.2024.b.The Ruling, and order of the Learned Deputy Registrar dated 17.04.2025 be set aside, varied and/or reviewed by directing that the Amended Notice of Motion Application dated 02.04.2024 proceed for hearing and annexed bill of costs be assessed before another Deputy Registrar with competent jurisdiction.c.The costs of this Appeal and other prior to this be awarded to the Appellant.d.Such further and other orders be granted as this Honourable court may deem fit and expedient. 2.The Appellant penned 7 grounds of Appeal; as follows;a.That the Learned trial Deputy Registrar erred in fact and law in dismissing the Appellants Application dated 18.10.2024 in the original Kisumu ELC Misc. Application No. E001/2024, that it did not meet the standard of review, setting aside and/or varying the orders made on 17.10.2024 dismissing a non-existing application dated 18.12.2023 which had been amended by the Appellant vide the Application dated 02.04.2024.b.The Learned Trial Deputy Registrar erred in fact and law in dismissing the Appellant’s Application dated 18.10.2024 in the original Kisumu ELC Misc. Application No. E001/2024 that it did not meet the standard of review, setting aside, and/or varying the orders made on 17.10.2024, which orders did not consider the amended notice of motion application dated 02.04.2023 bringing in the 2nd Respondent who was the Appellant’s instructing client.c.The Learned Trial Deputy Registrar erred in law and fact in dismissing the Appellant’s Application dated E001/2024 that it did not meet the standard of review, setting aside and/or varying the orders made on the 17.10.2024, which decision did not consider that the Appellant was executing warrants of attachment and sale of party and party costs on an existing decree in Kisumu ELC Petition No. 8 of 2018.d.The Learned Trial Deputy Registrar erred in fact and law in dismissing the Appellant’s Application dated 18.10.2024 in the original Kisumu ELC Misc. Application No. E001/2024 that it did not meet the standard of review, setting aside and/or varying the orders made on 17.10.2024, in which the Appellant maintains that execution of party and party costs dos not require a separate decree from the decree that awarded the assessed costs.e.The Learned Trial Deputy Registrar erred in fact and law in dismissing the Appellant’s Application dated 18.10.2024 in the Original Kisumu ELC Misc Petition No. E001/2024 that it did not meet the standard of review, setting aside and/or varying the orders made on 17.10.2024 in which the 2nd Respondent who was the instructing client of the Appellant who ought to been made liable to pay the Appellant costs and fees should execution be found irregular and/or unlawful.f.The Learned Trial Deputy Registrar erred in fact and law in dismissing the Appellant’s Application dated 18.10.2024 in the Original Kisumu ELC Misc. Application No. E001/2024 that it did not meet the standard of review, setting aside and/or varying the orders made on the 17.10.2024 penalising the Appellant for a mistake which was not of his making and thus leading to a miscarriage of justice.g.The Learned Trial Deputy Registrar erred in fact and law in dismissing the Appellants Application dated 18.10.2024 in the Original Kisumu ELC Misc. Application No. E001/2024, that it did not meet the standard of review, setting aside and/or varying the orders made on 17.10.2024 in which both or either of the Respondents ought to have shouldered the Appellant’s costs. 3.On the strength of the above grounds of Appeal, the Appellant sought for the reliefs set out at paragraph 1 of this judgment. 4.Upon admission of the Appeal the court issued directions for disposal of the Appeal by way of written submissions which the court summarises as herefollows; Appellant’s Submissions 5.The Appellants submission submits that there cannot be two decrees from the same judgment and in the same file; and has framed the 5 issues for determination. 6.In which the Appellant submits that the Hon. Taxing Master erred in law in hearing the application dated 18.10.2023 instead of the Amended application dated 02.04.2024. 7.On the strength of the above submissions filed by the Appellant himself pursuant to a Notice to act in person, the Appellant sought that the Appeal be allowed. 1st Respondent’s Submissions 8.The 1st Respondent framed and submitted on three issues for determination. On issue No. 1, whether the Appeal is merited, the 1st Respondent submits that the impugned Ruling dated 17.04.2025 in respect of the application dated 18.10.2024 was delivered after the court found that the Appellant failed to satisfy that he had extracted a decree before commencing on execution proceedings; and that there is no proof that the Appellant had extracted a decree. 9.To buttress the point, the 1st Respondent placed reliance on the decision the cases of Rabo Kimgetich Arap Cheruiyot Vs. Peter Kiprop Rotich (2006) eKLR as well as Muyuma Vs. Kaveva and Another (ELC Case No. 7/2021) 2025 KEELC 680 KLR, on the issue that execution could not proceed before extraction of a decree. 10.On issue No. 2, the 1st Respondent submits that the trial court was right in dismissing the Notice of Motion dated 18.10.2024, as there were no grounds for review, as the Appellant had not extracted a decree. Hence the court found that it would have dismissed the Amended Notice of Motion dated 02.04.2024 on similar grounds, in any event. 11.The 1st Respondent thus sought for dismissal of the Appeal. 12.The 2nd Respondent did not file submissions. Issues for Determination 13.Arising from the Record of Appeal and the submissions of the parties the court frames the following as issues for determination.i.Whether or not a decree in Kisumu ELC Petition No. 8/2018 between Benson Ambuti Adega and 2 Others Vs. NEMA and 3 Others was extracted before execution so as to justify the taxation of the auctioneers Bill of Costs?ii.Whether there were sufficient grounds to warrant a review of the Ruling dated 17th April, 2025.iii.Whether or not the Appeal is merited?iv.What reliefs ought to issue?v.Who bears the costs of the Appeal? Analysis and Determination 14.As a first Appellate court, this court is under the duty espoused in Selle Vs. Associated Motor Boat Co. (1968) EA 123. The duties to “reconsider the evidence, evaluate it and draw its own conclusion”. 15.In performance of the said duty the court has reviewed the Record of Appeal, with a view to establishing whether or not a decree in Kisumu ELC Petition No. 8 of 2018 Benson Ambuti Adega and 2 Others Vs. NEMA and 3 Others actually exists. This is because the Appellant in his submissions submits that no two decrees could exist in the same suit, while in the Rulings dated 17.10.2024 as well as the impugned Ruling dated 17.04.2025, different Learned Taxing Masters had found that no decree had been extracted before commencement of execution so as to justify the Appellants Bill of costs dated 18.12.2023, hence no execution proceeding could commence as that would be in contravention of Order 22 of the Civil Procedure Rules. 16.The court notes that the Ruling delivered on 17.04.2025 was in respect of a review application which sought to review the earlier ruling delivered on 17.10.2024 by Hon. Shimenga DR who had observed that the proclamation by the auctioneer had been commenced on the strength of certificate of costs which had not been converted to a decree by the Learned Judge. The said Ruling in respect of application dated 18th December 2023 is found at page 77 of the Record of Appeal. 17.The Application dated 18th of December 2023 had however been amended and effectively replaced by the Application dated 02.04.2024; and the Appellant sought a review of the Ruling dated 17.10.2024 on the basis that the court had erroneously delivered a Ruling in respect of a non-existent application pursuant to the said Amendment. 18.It is in respect of this 2nd Application for Review dated 18.10.2024, which sought to have the application dated 02.04.2024 introduced by way of Amendment to be heard and whose dismissal has provoked this Appeal. 19.The Learned Trial Taxing Master vide the Ruling dated 17.04.2025 dismissed the Application dated 18.10.2024 as per the Ruling appearing on page 7 of the Record of Appeal thus this Appeal in which the Appellant contends that the Learned Trial Taxing officer erred in referring to the application dated 18.10.2024 as opposed to the application dated 02.04.2024 and in dismissing the said application the court found that the same did not meet the criteria for Review, as there was no decree upon which execution could have been commenced. 20.Upon perusal of the Record of Appeal, the decree upon which the instructions to proceed with execution was not exhibited before court in both the application dated 18.10.2023 dismissed for the said reason vide the ruling of Hon. Shimenga dated 17.10.2024, and in the Amended Application dated 02.04.2024 which was not heard hence the application for review; for it to be heard. 21.Thus, in answer to issue No.1 the court finds that that the decree in ELC Petition 8/2018 between Benson Ambuti Adega and 2 Others Vs. NEMA and 3 Others having not been exhibited in court was thus not extracted before the execution process by way of proclamation was commenced by the Auctioneer. 22.On issue number 2, the Learned Trial Deputy Registrar concluded her Ruling dated 17.04.2025, by dismissing the application dated 18.10.2024 for failure to meet the threshold for review and/or setting aside. 23.The Learned Trial Taxing Master found that in the application dated 18.12.2023 was dismissed because it lacked a decree upon which the execution by the Appellant could have been founded and the court noted “The Applicant has not informed court that the decree had been extracted ty the time he applied for execution proceedings as Order 22 Rule 1 so that this court would arrive at a different finding as my predecessor it was to consider the Amended Application…” 24.The court found no ground to warrant review of the Ruling dated 17.10.2024 in dismissing application dated 18.12.2023, as both this application and the application dated 02.04.2024 did not attach any decree in Petition ELC No. 8/2024, which would have justified the execution on process by way of the proclamation by the auctioneer and the result would have been the same. 25.I note that no decree had been extracted and/or exhibited before this court in the Record of Appeal there was thus no decree before commencement of the execution proceedings a finding that both Learned Trial Magistrates reached, and in relation to the impugned Ruling there was thus nonew evidence as a ground for a Review of the first Ruling, and the trial court did not make any error in that regard. 26.Whereas the Application that Hon. Shimenga ought to have determined was the Application dated 02.04.2024 as opposed to application dated 18.12.2023, having reviewed and re-evaluated the said application dated 02.04.2024. I came to the same conclusion that the auctioneer proclaimed based on a certificate of costs as opposed to a valid decree having been entered after the certificate of costs, hence he proclaimed unprocedurally and the process was a nullity, as was held in Rubo Kimngetich Arap Cheruiyot Vs. Peter Kiprop Rotich (2006) KEHC 86 where the court held interalia“It is my view that a decree duly approved and signed had to be on record for any execution to take place…..since no exexution can take paced without a formal decree having been drawn and issued by the court…” 27.This court finds that the application for review was not merited, as the grounds for Review under section 80 and Order 45 were not met there was no new evidence of the decree in any event. 28.Consequently, the application dated 02.04.2024 just like the application dated 18.12.2023 were both destined to fail for lack of a decree; before execution. 29.It follows therefrom on issue number 3, that the Appeal herein lacks merits, and the same ought to be dismissed. 30.The court therefore dismisses the Appeal with costs to the 1st Respondent. DATED AT KILGORIS THIS 29TH DAY OF JUNE 2026HON. M.N. MWANYALEJUDGEIn the presence ofCA – Sylvia/ClaraMr. Onsongo for 2nd RespondentN/A for 1st RespondentAppellant Mr. Odongo acting in person