https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12010

Matata v Africa Merchant Assurance Company Limited (Insolvency Cause 17 of 2020) [2026] KEHC 12010 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KEHC 12010 (KLR) Republic of Kenya In the High Court at Mombasa Insolvency Cause 17 of 2020 J Ngaah, J July 31, 2026 Between Roselyne Nzingo Matata Petitioner and Africa Merchant Assurance Company Limited Respondent Ruling Introduction 1.Before me is the Petitioner’s Notice of Motion dated 2nd April, 2025, expressed to be brought under Order 51 rule 1 of the Civil Procedure Rules, 2010 and sections 1A, 1B, 3A and 27 of the Civil Procedure Act, Cap. 21. It seeks two orders: that this court be pleased to award the costs of the Petition; and that the costs of the application be provided for. The motion is supported by the affidavit of Kioko Maundu, advocate, sworn on 2nd April, 2025. 2.The application is opposed. The Respondent relies on the replying affidavit of Elizabeth Wanjiru, its Legal Manager, sworn on 22nd June, 2025. Both parties filed written submissions — the Petitioner’s dated 31st July, 2025 and drawn by M/s Kanyi J. & Company Advocates, and the Respondent’s dated 3rd September, 2025 and drawn by M/s Mburugu & Kanyonge Advocates. I have read the pleadings, the affidavits, the submissions and the authorities annexed to them. 3.I should dispose at the outset of a slip in the drafting. Prayer 1 on the face of the motion asks that the costs of the Petition be awarded “to the Respondent”, and ground 3 likewise speaks of “the Respondent” having incurred costs “in prosecuting the Petition”. The Respondent in this cause is the debtor company; it did not prosecute the Petition and does not ask for its costs. Read with the supporting affidavit and the submissions, it is plain that what is intended is an award of the costs of the Petition in favour of the Petitioner. Article 159(2)(d) of the Constitution requires me to administer justice without undue regard to procedural technicalities. No prejudice has been occasioned; the Respondent has answered the application on the footing that it is the Petitioner who claims costs. I therefore read the motion accordingly. Background 4.The early history is common ground. 5.The Petitioner is a decree holder. On 10th June, 2019 judgment was entered in her favour in Mombasa CMCC No. 695 of 2018. 6.A statutory demand in Form No. 6 was thereafter issued out of this court requiring the Respondent to pay Kshs. 1,093,351.32 together with interest at 14% per annum from 4th September, 2020 until payment in full, within twenty-one days. Mr. Maundu deposes that the demand was served on 8th September, 2020, though the demand annexed to his affidavit as “KM 1” is dated 15th September, 2020 and bears what appears to be the Respondent’s receiving stamp of 22nd September, 2020. Nothing turns on the discrepancy. 7.The Respondent did not comply with the demand. On 16th November, 2020 the Petitioner presented the Petition herein. 8.The Respondent filed no response to the Petition. On 27th April, 2021 the parties recorded a consent by which the Respondent undertook to settle the outstanding debt, and thereafter the Respondent commenced payments. The consent is not exhibited to Mr. Maundu’s affidavit and its terms are not before me. The Petition was not withdrawn upon its recording; it remained on the court’s file. The record 9.It is at this point that I must part company with the account given to me by both sides. 10.The Petitioner’s motion, her supporting affidavit and her submissions, and the Respondent’s replying affidavit and submissions alike, all proceed upon the footing that the Petition was struck out on 1st November, 2023 and that the court on that occasion made no order as to costs. Ground 1 on the face of the motion says the Petition was struck out “without any order as to costs”. Paragraph 6 of Mr. Maundu’s affidavit says the court “proceeded to struck out the Petition but made no order as to costs”. Paragraph 5 of the Petitioner’s submissions says “the Court struck out the Petition and made no order as to costs”. The Respondent adopts the same description in its replying affidavit and its submissions. Upon that shared account the whole of the argument on both sides was built. 11.I have examined the court record. It does not bear that account out. The record discloses no proceedings whatever on 1st November, 2023. Nothing was done in this cause on that day. There is no ruling of that date, no order of that date, and no notation of that date. Whence the date entered the parties’ papers I cannot say; it may be that one party misremembered and the other adopted the error without checking, for the two sides are represented by advocates who have plainly worked from a common but mistaken recollection rather than from the file. However it arose, the date corresponds to no event, and the account of a striking out “without any order as to costs” on that day is, quite simply, a description of something that did not happen. 13.The record discloses that the matter came up before the court on 4th April, 2023, when counsel for the Respondent informed the court that the entire sum due to the Petitioner had been paid. The court thereupon made the following order:“The petition is hereby dismissed. File closed.” 14.Three matters emerge from that entry, and each of them is material.(a)The order disposing of this cause, the only order disposing of it, was made on 4th April, 2023. The 1st November, 2023 upon which every party has relied is a date on which nothing occurred.(b)The Petition was dismissed and the file closed upon counsel for the Respondent informing the court that the whole of the debt had been paid. The disposal was not founded upon any defect in the Petition, nor upon any determination adverse to the Petitioner.(c)Costs were not mentioned. The court neither awarded them, nor refused them, nor directed that each party bear its own. 15.I am conscious that the application was argued before me upon a different factual premise, and that a court should be slow to decide a matter upon a footing which the parties have not addressed. Two things persuade me that no unfairness arises. The first is that the Petitioner’s case, as pleaded at paragraphs 14 and 18 of her submissions, is precisely that in the ruling “the court did not address the issue of costs” and “did not express itself as to the issue of costs”, so that the question “remained open for subsequent determination”. That is the case which the record vindicates, and it is a case to which the Respondent has directed argument. The second is that a court is bound by its own record. Neither the agreement of the parties nor their common error can alter what that record shows, and I should be failing in my duty were I to decide a question of jurisdiction upon a version of events which the file contradicts. 16.The present motion was taken out on 2nd April, 2025 —two days short of two years, after the order of 4th April, 2023. I note in passing that the Respondent’s deposition at paragraph 8 of the replying affidavit, that the application was filed “close to 2 years” after the decision, was accurate, and that the Petitioner’s submission at paragraph 21 that the delay is “in the matter of months as opposed to the two years suggested by the Respondent” was not. 17.For completeness I record two further slips in the material, neither of which affects the outcome. Paragraph 1 of the Petitioner’s submissions puts the sum demanded at Kshs. 1,636,751, whereas the statutory demand exhibited claims Kshs. 1,093,351.32 plus interest. And the Respondent’s submissions pray for the dismissal of “the Applicant’s Application dated 23rd January, 2025”, when the motion before me is dated 2nd April, 2025. I note only that Mr. Maundu’s affidavit compounds the confusion over dates by placing the disposal at one point on “1st November, 2025”, a date still in the future when the affidavit was sworn. The petitioner’s case 18.The Petitioner’s case is short. The Respondent ignored a decree and a statutory demand. It moved to settle only after the Petition was presented, and did so on the strength of a consent recorded within these proceedings. The Petition was therefore both necessary and effective; it was the instrument by which payment was procured, although this is not the purpose which petitions such as the instant petition are meant to serve. She incurred filing fees, service costs, attendances before judges and the Deputy Registrar, and the expense of drawing and filing pleadings and submissions. She says she should not be left to bear those costs herself. 19.On jurisdiction she submits that the court is not functus officio, relying on Telkom Kenya Limited v John Ochanda [2014] eKLR for the proposition that the doctrine bars only a merit-based decisional re-engagement with a decided case; on Bellevue Development Company Limited v Vinayak Builders Limited & Another [2014] eKLR for the proposition that one must look to the relief actually sought; and on Leisure Lodge Limited v Japhet Asige & Another [2018] eKLR and Mombasa Bricks & Tiles Limited & 5 Others v Arvind Shah & 7 Others [2018] eKLR for the proposition that a court retains jurisdiction over proceedings incidental to, or consequential upon, a final order. She relies in particular on KPLC v Khan Nassir Rustam, Mombasa HCCA No. 111 of 2012, in which this court, by a ruling of 2nd September, 2023, entertained an application for costs made after an appeal had been dismissed for want of prosecution without any order on costs having been made. 20.She further submits that no prayer for reinstatement or setting aside was required, because costs flow naturally from the disposal; that the application is not an appeal in disguise; and that any delay is not inordinate. On the merits she invokes the proviso to section 27(1) of the Civil Procedure Act together with Republic v Rosemary Wairimu Munene, ex parte Ihururu Dairy Farmers Co-operative Society Limited, Cecilia Karuru Ngayu v Barclays Bank of Kenya & Another [2016] eKLR, Haraf Traders Limited v Narok County Government [2022] eKLR, Robert Nyonga Angatia v Aggrey Taikosh Azelwa [2021] eKLR and Republic v Director General, Kenya National Highways Authority & Another, ex parte Bash Hauliers [2017] eKLR. Respondent’s case 21.The Respondent’s answer is jurisdictional. Its case is that the court exercised its discretion on costs by making no order as to costs, and that the present motion invites it to revisit an exercise of discretion already undertaken — which is what the doctrine of functus officio forbids. It relies on Raila Odinga & 2 Others v Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR, where the Supreme Court adopted the account of the doctrine given by Daniel Malan Pretorius in “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” [2005] 122 SALJ 832. 22.It adds that the application is res judicata; that it is framed as an appeal against a decision of this court, which cannot sit on appeal against itself; that no prayer for reinstatement or for setting aside accompanies it; and that it was filed long after the disposal without explanation, contrary to the principle that equity aids the vigilant. 23.In the alternative it submits that the Petition was disposed of at a preliminary stage without any determination on the merits, so that there was no “event” which costs might follow; that the outcome was neither a victory for the Petitioner nor a defeat for the Respondent but an acknowledgment that the substratum of the Petition had ceased to exist; and that to burden with costs a party which has already met its obligations would be to punish it. It relies on Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR), Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others, SC Petition No. 4 of 2012 [2014] eKLR, Karisa & 49 Others v Zani & Another (Environment and Land Originating Summons E004 of 2023) [2024] KEELC, and Sagalla Lodge Limited v Samwuel Mazera Mwamunga & Another [2022] eKLR. Issues for determination 24.Three issues arise:(a)whether this court has jurisdiction to entertain the application, or is functus officio;(b)what consequence, if any, follows from the delay in bringing it; and(c)whether the Petitioner is entitled to the costs of the Petition. Analysis and determination (a) Whether this court is functus officio 25.The doctrine is not in doubt. In Telkom Kenya Limited v John Ochanda (supra) the Court of Appeal put it thus:“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon… The doctrine is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What it does bar is a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued.” 26.Everything therefore turns upon the distinction between a court which has spoken to the question of costs and a court which has not. Had the record borne out the common account of the parties — that the court struck out the Petition and made no order as to costs — I should have had no hesitation in holding this court functus officio. An order that there be no order as to costs is not silence. It is a disposition, and it is the classical formula by which a court, exercising the discretion conferred by section 27(1) of the Civil Procedure Act, directs that each party shall bear its own costs. A litigant dissatisfied with such an order is dissatisfied with a decision, and his remedy lies in review or in appeal, not in a fresh application to the same court. 27.But that is not what the record shows. What the court said on 4th April, 2023, upon being told that the whole debt had been paid, was that the Petition was dismissed and the file closed. Costs were not adverted to at all. That is not a disposition of the question of costs. It is silence upon it. 28.The distinction is drawn with precision in the passage from the Ugandan decision in Re Ebuneiri Waisswa Kafuko which both parties placed before me:“The judge in his discretion may say expressly that he makes no order as to costs and in that case each party must pay his own costs. If he does not make an order as to costs, the general rule is that he shall order that the costs follow the event except where it appears to him in the circumstances of the case some other order should be made as to the whole or any part of the costs.” 29.The first limb speaks of the judge who says expressly that he makes no order as to costs. The second speaks of the judge who does not make an order as to costs at all. It is the second limb which fits this case, and its stated consequence is not that each party bears its own costs but that the general rule applies and costs follow the event. 30.It follows that KPLC v Khan Nassir Rustam (supra) is not to be distinguished but applied. There an appeal was dismissed for want of prosecution and the court did not address costs; on a subsequent application this court held, by its ruling of 2nd September, 2023, that it was not functus officio in respect of costs, and awarded them. I can discern no material difference between that case and this one. 31.Applying the test in Bellevue Development Company Limited (supra) — that one looks to the order or relief actually sought — the relief sought here is incidental to, and a natural consequence of, the order of 4th April, 2023. The court is not asked to reconsider whether the Petition should have been dismissed, nor to disturb any finding, nor to re-engage with the merits of the dispute between these parties. It is asked to complete an order which was left incomplete. That is squarely within the class of supplemental and facilitative proceedings which Leisure Lodge Limited (supra) and Mombasa Bricks & Tiles Limited (supra) hold a court retains power to undertake after final judgment. 32.I hold that this court is not functus officio, and that the application is competent. 33.The Respondent’s remaining preliminary objections fall away with that holding, but I deal with them shortly. 34.The plea of res judicata is misconceived twice over. Section 7 of the Civil Procedure Act bars the trial of an issue directly and substantially in issue in a former suit between the same parties which has been heard and finally determined by a competent court. This application is not a fresh suit; it is a motion taken out within the very cause in which the order was made, and the doctrine which governs that situation is functus officio, not res judicata. In any event, nothing was determined on costs, so there is nothing which could be res judicata. 35.The objection that the application is an appeal in disguise cannot survive either. There is no costs order from which an appeal could lie, disguised or otherwise. For the same reason no question of review under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules arises: there is nothing to review. 36.Nor do I accept the contention at paragraph 10(a) and (b) of the replying affidavit that the Petitioner was bound first to apply for the reinstatement of the Petition, or for the setting aside of its dismissal, before any question of costs could arise. Costs are consequential upon the determination of a cause; they do not require its resurrection. (b) Delay 37.The delay is real and it is unexplained. Two days short of two years elapsed between the dismissal of the Petition and the taking out of this motion, and the Petitioner has offered not a syllable by way of explanation. Her submission that the delay was a matter of months rested, as I have shown, upon a mistaken date. 38.Delay of that order is not to be passed over lightly. But it goes to discretion and not to jurisdiction, and I must ask what it has cost. The Respondent has asserted no prejudice beyond the general interest in finality. No evidence has become unavailable; no position has been altered in reliance upon the silence; the debt was paid long ago and its payment is admitted. In Khan Rustam (supra) an application made after two years and ten months was entertained. I am not prepared to shut out a claim for costs which the general rule would otherwise confer merely because it was made late, where lateness has injured no one. The delay will, however, sound in the costs of this application, and I return to it at the end of this ruling. (c) Entitlement to the costs of the petition 39.The governing provision is section 27(1) of the Civil Procedure Act, whose proviso is that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise direct. The discretion is wide but judicial. In Farah Awad Gullet v CMC Motors Group Limited (supra) the Court of Appeal held that costs are at the discretion of the court seized of the matter, that the discretion must be exercised judiciously and without caprice or whim, and that costs may be withheld from a successful party only for good cause shown. In Jasbir Singh Rai (supra) the Supreme Court observed that the award of costs would normally be guided by the principle that costs follow the event, the vital factor being the judiciously exercised discretion of the court, accommodating the special circumstances of the case while guided by the ends of justice. 40.The Respondent’s central submission is that there was no “event” for costs to follow, the Petition having been disposed of without any determination on the merits. I am unable to accept it, and the record is the answer to it. 41.The event is plain enough. The Petitioner held a decree of 10th June, 2019 which was not honoured. She issued a statutory demand which was not met. She presented a Petition to which the Respondent filed no response whatever. Only after the Petition had been presented did the Respondent, by the consent of 27th April, 2021, undertake to pay; and it was counsel for the Respondent who, on 4th April, 2023, told the court that the entire sum due to the Petitioner had been paid. Upon that information the Petition was dismissed and the file closed. The Petition was therefore not dismissed because it was bad, nor because the Petitioner had failed in anything. She recovered, through these proceedings, the whole of what she came to court to recover. It is difficult to conceive of a clearer event. 42.A creditor whose properly presented petition compels payment of an undisputed debt does not become the losing party merely because the petition is afterwards dismissed on the footing that the debt has gone. In Republic v Director General, Kenya National Highways Authority, ex parte Bash Hauliers (supra) the court declined to deny costs to a party which would not have been put to the expense but for the other side’s conduct. In Robert Nyonga Angatia v Aggrey Taikosh Azelwa (supra) costs were allowed to an applicant who had pursued his claim “to a successful ending, albeit through a consent”. And Justice (Retired) Kuloba, in Judicial Hints on Civil Procedure, observes that the fact that the unsuccessful party did not contest the case is not in itself a ground for refusing costs. Each of those observations applies here. 43.Two matters have given me pause, and I should say why neither amounts to the good reason which the proviso requires. 44.The first is the consent of 27th April, 2021. Where parties compromise proceedings by consent, the settled and sensible practice is that the consent should provide for costs, and a party who wishes to preserve them ought to say so at the time. The consent has not been produced, and I do not know its terms. But the course of the proceedings tells me something about its character. The Petition was not withdrawn when the consent was recorded, and it was not marked settled; it remained on the file for a further two years until the Respondent reported full payment. That is not the pattern of a compromise which disposed of the cause. It is the pattern of an arrangement for payment, the Petition being retained on foot against performance. On that footing costs fell naturally to be dealt with when the Petition was finally disposed of, and on 4th April, 2023 they were not. They accordingly remain at large, which is precisely how this application comes to be competent. I have weighed the Petitioner’s failure to stipulate for costs in the consent, but silence in an interim payment arrangement cannot be treated as a surrender of an entitlement which the general rule confers upon disposal. 45.The second is the delay, which I have already addressed. An unexplained wait of nearly two years is not a creditable way to conduct litigation, and it has not escaped my notice that the Petitioner compounded it by placing before me an account of the disposal which the record does not support. But delay which has caused no prejudice is not a good reason for depriving a successful party of costs to which she is otherwise entitled. It is, however, a very good reason for declining to allow her the costs of the application by which she has sought them, and I shall so order. 46.The Respondent submits, finally, that to burden it with costs would be to punish a party which has already met its obligations. But costs are not imposed by way of punishment. As the court observed in Republic v Rosemary Wairimu Munene, ex parte Ihururu Dairy Farmers Co-operative Society Limited (supra), the principle that costs follow the event is not used to penalise the losing party; it exists to compensate the successful party for the trouble taken in prosecuting or defending the case. The trouble taken by this Petitioner including the statutory demand, the Petition, the submissions, the attendances before judges and the Deputy Registrar over some two and a half years, the fees and the process servers, was trouble to which she was put by the Respondent’s own failure to pay a decretal debt for very nearly four years after judgment. She ought not to bear the expense of it herself. 47.I find no good reason to depart from the general rule. The Petitioner is entitled to the costs of the Petition. Disposition 48.For the reasons given, the Notice of Motion dated 2nd April, 2025 succeeds in substance, though not as to the costs of the motion itself. I make the following orders:(a)It is declared that this court is not functus officio in respect of the costs of the Petition, the order of 4th April, 2023 having made no provision for them.(b)The Respondent shall pay the Petitioner the costs of the Petition, such costs to be taxed by the Deputy Registrar if not agreed.(c)There shall be no order as to the costs of the Notice of Motion dated 2nd April, 2025, each party bearing its own. DATED, SIGNED AND DELIVERED ON 31 JULY 2026NGAAH JAIRUSJUDGEIn the presence of:.......................................... for the Petitioner.......................................... for the Respondent.......................................... Court Assistant