[2019] KEHC 3863 (KLR)
The court held that Section 27(1) of the Civil Procedure Act grants it unfettered discretion to determine by whom costs are to be paid, but the general rule is that costs follow the event. Since the appellant was the successful party in both the lower court and on appeal, he is entitled to costs unless there is good...
Source-derived case information.
- Citation
- [2019] KEHC 3863 (KLR)
- Parties
- Appellant: Michael Kipchumba; Respondent: Channan Agricultural Contractors
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 60 of 2017
- Procedural Posture
- Civil Appeal / Post Judgment Application for Directions on Costs
- Outcome
- Application allowed in part.
- Judges
- TW Cherere
- Legal Topics
- Costs Award, Judicial Discretion, Post Judgment Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Kipchumba
Appellant
Channan Agricultural Contractors
Respondent
Procedural Posture
Civil Appeal / Post Judgment Application for Directions on Costs
Legal Issues
- 1 Whether the appellant is entitled to costs in the lower court following a successful appeal where the judgment was silent on costs.
- 2 Whether the respondent should bear the costs of the appeal and the lower court proceedings.
Ratio Decidendi
The court held that Section 27(1) of the Civil Procedure Act grants it unfettered discretion to determine by whom costs are to be paid, but the general rule is that costs follow the event. Since the appellant was the successful party in both the lower court and on appeal, he is entitled to costs unless there is good reason to order otherwise. The silence of the appellate judgment on costs did not deprive the appellant of his right to costs. The court further found that denying the appellant costs would not serve the ends of justice. Accordingly, the respondent was ordered to bear the costs of the appeal and the lower court, while each party was to bear its own costs of the present...
Court Disposition
Application allowed in part.
Orders
- The respondent shall bear costs of the appeal and of the lower court.
- Each party shall meet its own costs of this application.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CIVIL APPEAL NO. 60 of 2017
MICHAEL KIPCHUMBA...........................................................APPELLANT
VERSUS
CHANNAN AGRICULTURAL CONTRACTORS..............RESPONDENT
RULING
Background
1. On 08th March, 2018, this court allowed the Appellant’s appeal but the judgment was silent on costs.
Application
2. By a notice of motion amended on 01st July,2019, brought under Sections 1A, 1B, 3A, 27 (1) and 34 of the Civil Procedure Act (the Act) and Article 159 of the Constitution, the Appellant/ Applicant pray for orders THAT:
i. The court be pleased to give directions on whether the Appellant is entitled to costs in the lower court
ii. Costs of this application be borne by the Respondent
3. The application is based on the grounds among others that the lower court has declined to tax the Appellant’s costs in WINAMSRMCC NO.166 OF 2016MICHAEL KIPCHUMBA VERSUSCHANNAN AGRICULTURAL CONTRACTORSon the ground that this court’s judgment was silent on costs.
4. The application is also supported by an affidavit sworn on 01st July, 2019 by Maureen Akoth Okumu, advocate for the Applicant who reiterates the grounds on the face of the application.
5. The application is opposed on the basis of grounds of opposition filed on 22nd August, 2019 where it is asserted that the application is an abuse of the process.
Analysis and Determination
6. I have carefully considered the notice of motion vis a vis the supporting affidavit and the grounds of opposition.
7. Section 27 of the Act provides that:
(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:
Provided 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 order.
8. Section 27(1) of the Act gives courts the unfettered discretion to determine by whom costs are to be paid. It is trite that costs follow the event and a successful litigant ought to be fairly reimbursed for the costs that he has had to incur.
9. Section 3A of the Civil Procedure Act Cap 21 Laws of Kenya gives this court inherent power to make such orders as may be necessary for the ends of justice to be met. Ends of justice cannot, in my humble view be met or seen to be met if the Applicant being the successful litigant is denied costs.
10. The upshot of the foregoing is that the notice of motion dated 08th March, 2018is considered and allowed in the following terms:
i. The Respondent shall bear costs of the Appeal and of the lower court
ii. Each party shall meet its own costs of this application
DELIVERED AND SIGNED IN KISUMU THIS..26th..DAY OF…September…2019
T.W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant - Amondi/Okodoi
For Appellant/Applicant -N/A
For the Respondent - N/A