[2019] KEHC 9698 (KLR)
The court found that the omission to award costs to the plaintiffs in the original judgment was a non-deliberate and unintentional oversight. Under Section 27(1) of the Civil Procedure Act, costs should ordinarily follow the event, and a successful party is entitled to costs unless the court records reasons for...
Source-derived case information.
- Citation
- [2019] KEHC 9698 (KLR)
- Parties
- Plaintiff: Ben Otieno Owaga; Plaintiff: Noel Sheunda Nyongesa; Plaintiff: Ben Otieno Owaga and Noel Sheunda Nyongesa (Suing as administrators ad litem of the estate of Michelle Aittah Owaga, Deceased); Defendant: Eliakim Owalla; Defendant: Kapkwata Saw Mills Ltd
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 340 of 2012
- Procedural Posture
- Civil Case / Ruling on Application for Review of Judgment Regarding Costs
- Outcome
- Application for review allowed; costs awarded to plaintiffs.
- Judges
- JK Mulwa
- Legal Topics
- Review of Judgment, Costs Award, Error on Face of Record
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Ben Otieno Owaga
Plaintiff
Noel Sheunda Nyongesa
Plaintiff
Ben Otieno Owaga and Noel Sheunda Nyongesa (Suing as administrators ad litem of the estate of Michelle Aittah Owaga, Deceased)
Plaintiff
Eliakim Owalla
Defendant
Kapkwata Saw Mills Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application for Review of Judgment Regarding Costs
Legal Issues
- 1 Whether the omission to award costs to the plaintiffs in the judgment was an error apparent on the face of the record.
- 2 Whether the court has jurisdiction to review its judgment to address the omission regarding costs.
Ratio Decidendi
The court found that the omission to award costs to the plaintiffs in the original judgment was a non-deliberate and unintentional oversight. Under Section 27(1) of the Civil Procedure Act, costs should ordinarily follow the event, and a successful party is entitled to costs unless the court records reasons for denial. The court is empowered under Section 99 of the Civil Procedure Act and Order 45 Rule 1(b) of the Civil Procedure Rules to review its judgment and correct mistakes or errors apparent on the face of the record. Since the issue of costs was pleaded and not addressed, the court allowed the application for review and ordered that costs be awarded to the plaintiffs as joint...
Court Disposition
Application for review allowed; costs awarded to plaintiffs.
Orders
- Costs of the suit upon the judgment delivered on 12th October 2017 shall be paid to the plaintiffs as joint administrators of the estate of the deceased by the defendants jointly and severally with interest at court rates from the date of the judgment.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAKURU
CIVIL CASE NO. 340 OF 2012
BEN OTIENO OWAGA..........................................................1ST PLAINTIFF
NOEL SHEUNDA NYONGESA...........................................2ND PLAINTIFF
BEN OTIENO OWAGA AND
NOEL SHEUNDA NYONGESA
(Suing as administrators ad litem
The estate of MICHELLE AITTAH OWAGA
(Deceased).............................................................................3RD PLAINTIFF
VERSUS
ELIAKIM OWALLA.......................................................1ST DEFENDANT
KAPKWATA SAW MILLS LTD....................................2ND DEFENDANT
RULING
1. Judgment in this case was delivered on the 12th October 2017 on my behalf by the Hon. R. Korir J.
By a Notice of Motion dated 18th July 2018 by the plaintiffs under order 45 Rule 1 and Order 52 rule 1 Civil Procedure Rules, the applicant seeks a Review of the judgment and decree and determine the plaintiffs prayer for costs which issue is silent in the judgment though pleaded in the plaint.
2. It is evident on the judgment that no order on costs was made on the judgment.
Under Section 27(1) of the Civil Procedure Act costs ordinarily follow the event unless the court shall, for good reason or otherwise decline to order such costs. A successful party too is entitled to costs of a suit unless there are reasons to be recorded for a denial of the costs.
3. The omission to award costs to the plaintiff must have been an oversight, a mistake or omission on my part. That may be corrected on own motion or upon application – Section 99 CPA or under Order 45 Rule I(b) CPR. The court is empowered to review its orders/judgment on account of some mistake or error apparent on the face of the record.
4. Having rendered that I was, by a non-deliberate and unintentional omission to determine the matter of costs, and the issue having been brought to my attention by the application, I allow the said application dated 18th July 2018 and make an order that costs of the suit upon the judgment delivered on the 12th October 2017 shall be paid to the plaintiffs as joint administrators of the estate of the deceased by the Defendants jointly and severally with interest at court rates from the date of the judgment.
Dated, signed and delivered this 14th Day of February 2019.
J.N. MULWA
JUDGE