[2017] KEELC 2847 (KLR)
The court found that the Chief Magistrate acted within his discretion in awarding costs to the respondent following the dismissal of the suit for want of prosecution. There was no evidence that the discretion was exercised capriciously, in error, or in a manner that prejudiced the appellants beyond what could be...
Source-derived case information.
- Citation
- [2017] KEELC 2847 (KLR)
- Parties
- Appellant: Caleb Miheso Ijami; Appellant: Talichi Maloba; Respondent: Joseph Ndetswa Mbira & Another
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 1 of 2016
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed with costs
- Legal Topics
- Costs Taxation, Dismissal for Want of Prosecution, Exercise of Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Caleb Miheso Ijami
Appellant
Talichi Maloba
Appellant
Joseph Ndetswa Mbira & Another
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the Chief Magistrate erred in taxing costs when there was a pending application to set aside the dismissal of the suit.
- 2 Whether the appellants were denied their right to be heard and whether the rules of natural justice were breached.
- 3 Whether the exercise of discretion by the Chief Magistrate in awarding costs was judicious.
Ratio Decidendi
The court found that the Chief Magistrate acted within his discretion in awarding costs to the respondent following the dismissal of the suit for want of prosecution. There was no evidence that the discretion was exercised capriciously, in error, or in a manner that prejudiced the appellants beyond what could be remedied by monetary compensation. The pending application to set aside the dismissal did not preclude the taxation of costs, and the appellants failed to demonstrate any breach of the rules of natural justice or denial of their right to be heard. Consequently, the appeal lacked merit and was dismissed with costs to the respondent.
Court Disposition
appeal dismissed with costs
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA.
IN THE ENVIRONMENT AND LAND COURT AT BUNGOMA.
HCA. CASE NO. 1 OF 2016.
CALEB MIHESO IJAMI ………………………………… 1ST PLAINTIFF
TALICHI MALOBA……………………………………………2ND PLAINTIFF
VERSUS.
JOSEPH NDETSWA MBIRA & ANOTHER. ……………. RESPONDENTS
JUDGMENT.
[1]. The appellant herein filed this appeal against the ruling of S.M. Shitubi (CM) of 20. 3.2013 erroneously pleaded as ruing of C. Kendagor Ag. SRM. He sets five grounds of Appeal. The first being that the learned Chief Magistrate erred in law in not appreciating that the appellant herein had filed an application pending before the Court, that the learned Magistrate erred in taxing the costs when there was an application to set aside the entire proceedings. That the learned Magistrate erred in Law in not according the appellants their day in court and that the learned Magistrate erred in law in disregarding the issues raised by their appellants in their application before the Court and that he failed In-law in not observing the rules of natural justice.
[2]. The suit giving rise to this appeal was dismissed on 9/9/2009 by H.I. ONGU’NDI (CM) Under order XVI rule 2. The respondent filed a bill of costs on 29/6/2010. The same came up for taxation on 11/8/2010 the appellants said they never received the notice for dismissal. The matter was adjourned with costs and the applicants were ordered to pay Court Adjournment Fee. Application was to be filed and served within 21 days. The bill of costs came up for taxation on 20/3/2013. It was opposed. A ruling was made by the Chief Magistrate. The objection was dismissed and the bill was taxed as drawn for Kshs.57,880/=
[3]. It is against such taxation that the appeal was preferred on the basis that there was a pending application to set aside the dismissal of the suit for want of prosecution. Under the Civil Procedure Act Sec. 27. Costs shall follow the event. In other words if the court does not specifically give an order of costs they will always follow the outcome of the suit. In this case the Plaintiffs suit was dismissed as against the defendant. The defendant was within his rights to draw a bill of costs. Costs are discretionary. The learned Chief Magistrate exercised his discretion in favour of the defendant and dismissed the objection. It was not shown in this application that the exercise of that discretion was not judicious or that the learned Chief Magistrate erred in Law. An appellate court will not normally interfere with the exercise of discretion if there is no mistake, or error or proof that the discretion was exercised capriciously. It was also not shown that the award of these costs occasioned prejudice to the appellants, that would not be remedied or capable of being compensated by money, if their application to set aside the dismissal for want of prosecution was to be allowed.
This appeal has no merits and it is dismissed with costs.
Judgment read in open Court.
DATED at BUNGOMA this 23rd day of May, 2017.
S. MUKUNYA
JUDGE.
In the presence of:
Gladys/Joy: Court Assistant
Parties are absent
Parties are served
R/S (Return of Service) filed.