[2017] KEHC 5622 (KLR)
The court found that the 1st respondent, though not a party to the consent orders that settled the suit between the applicant and the 2nd respondent, was nonetheless a party to the proceedings and incurred costs as a result of being brought to court. There was no justification provided for excluding the 1st...
Source-derived case information.
- Citation
- [2017] KEHC 5622 (KLR)
- Parties
- Applicant: Esther Consolata Mwania; Respondent: Egerton University; Respondent: Kisii University
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 17 of 2013
- Procedural Posture
- Judicial Review / Ruling on Costs and Adoption of Consent Orders
- Outcome
- Application settled as between applicant and 2nd respondent; issue of costs to 1st respondent determined; adoption of consent orders deferred.
- Judges
- JK Mulwa
- Legal Topics
- Costs Award, Consent Orders, Judicial Review Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Consolata Mwania
Applicant
Egerton University
Respondent
Kisii University
Respondent
Procedural Posture
Judicial Review / Ruling on Costs and Adoption of Consent Orders
Legal Issues
- 1 Whether the 1st Respondent, not party to the consent orders, is entitled to costs of the suit.
- 2 Who between the Applicant and the 2nd Respondent should bear the costs payable to the 1st Respondent.
- 3 Whether the court should adopt the consent orders before resolving the issue of costs to the 1st Respondent.
Ratio Decidendi
The court found that the 1st respondent, though not a party to the consent orders that settled the suit between the applicant and the 2nd respondent, was nonetheless a party to the proceedings and incurred costs as a result of being brought to court. There was no justification provided for excluding the 1st respondent from the consent or from entitlement to costs. The court exercised its discretion under Section 27 of the Civil Procedure Act and held that the 1st respondent is entitled to costs of the suit. Furthermore, since the applicant and the 2nd respondent failed to involve the 1st respondent in the negotiations leading to the consent, they are to share the 1st respondent's costs...
Court Disposition
Application settled as between applicant and 2nd respondent; issue of costs to 1st respondent determined; adoption of consent orders deferred.
Orders
- The 1st respondent is entitled to costs of the suit.
- The applicant and the 2nd respondent shall equally share the costs payable to the 1st respondent, such costs to be agreed or taxed.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
JUDICIAL REVIEW NO. 17 OF 2013
IN THE MATTER OF KISII UNIVERSITY
AND
IN THE MATTER OF BREACH OF RULES OF NATURAL JUSTICE
AND
IN THE MATTER OF DISCONTINUATION OF THE APPLICANT FROM THE RESPONDENTS INSTITUTION
ESTHER CONSOLATA MWANIA……...…….....…......……...….……APPLICANT
VERSUS
EGERTON UNIVERSITY ….................................................1ST RESPONDENT
KISII UNIVERSITY…………………......................................2ND RESPONDENT
RULING
1. This Judicial Review Application was bought on the 8th April 2013 Esther Consolata Mwania represented by the firms of B. Musyoki & Co. Advocates against the 1st and 2nd respondents, Egerton University and Kisii University respectively.
2. A perusal of the court proceedings indicate that Nyairo & Co. Advocates represented the 2nd Respondent while the 1st Respondent is presented by Gekong'a & Co. Advocates.
3. It is on record that on the 5th August 2014 a consent order compromising the application was executed between the Applicant and the 2nd respondent and filed on the 22nd May 2014.
The applicant was awarded costs of the application, but no mention was made on costs for the 1st respondent.
4. By a further consent between the applicant and the 2nd respondent dated 7th October 2017 and filed on the 15th February 2017, the case was marked as settled. I have been requested to adopt the above consent orders.
Adoption of the same would mark the Judicial Review application as settled including orders of costs as stated in the consent dated 5th August 2014 and filed on the 5th February 2016.
5. Parties here disagree on whether or not the 1st Respondent who was not provided for in costs in both consents, should be paid costs and by which party.
6. From the records and submissions by the 1st Respondents advocates, it is evident that the 1st Respondent was not a party to the consents that settled the suit. Needless to state, as a party, the 1st Respondent ought to have been called upon to participate in the negotiations leading to the consent orders. The consent order provided for costs to the applicant only and payable by the 2nd Respondent.
The 1st respondent seeks that costs of the Judicial Review application be be provided for.
7. An award of costs is ordinarily granted to the successful party in a suit, but upon the court's discretion. Section 27 of the Civil Procedure Act gives the court the discretion to determine by whom and to what extent costs are to be paid. It further provides that costs shall follow the event unless the court shall for good reason otherwise order. The applicant brought both the 1st and 2nd respondents to the court. They must have expended money towards disbursements court attendances and other incidentals. The applicant was awarded costs in the consent executed by the applicant and the 2nd respondent. It has not been explained why the 1st Respondent was left out of the consent. There being no reasons or rational to deny the 1st Respondent costs of the compromised suit, I find that the 1st Respondent is entitled to costs of the suit.
8. As to who between the Applicant and the 2nd respondent should pay such costs, I find that as the two parties failed to invite the 1st respondent to the negotiations leading to the compromise order, the Applicant and the 2nd respondent shall equally share costs to the 1st Respondent, such costs to be agreed or taxed.
I further direct that the said costs be taxed or be agreed and a consent order be recorded.
9. Before this is done, the court will not adopt the consent orders recorded as by doing so without first resolving the issue of costs to the 1st Respondent would be prejudicial to its entitlement of costs.
10. Parties are at liberty to apply for adoption of the consent orders once the issue at hand is resolved.
11. It is so ordered.
Dated, Signed and Delivered this 25th Day of May 2017.
J.N. MULWA
JUDGE