[2019] KEHC 10178 (KLR)
The court found that the omission to specify which party should pay the 1st defendant's costs was an error and oversight. Since the 1st defendant was not a necessary party and was dragged into the suit by the plaintiffs, she was entitled to costs. The court exercised its discretion to review and clarify its earlier...
Source-derived case information.
- Citation
- [2019] KEHC 10178 (KLR)
- Parties
- Applicant: Mwanzo Kaptembwa Self Help Group (suing through officials Florence Wangui Ngari and Peter Warui Wamai); Respondent: Florence Waithera Mungai; Respondent: Peter Kuria Ikua
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 188 of 2012
- Procedural Posture
- Review Application / Ruling on Application for Review of Costs Order
- Outcome
- Application for review allowed; costs of the withdrawn suit against the 1st defendant to be paid by the plaintiffs jointly and severally.
- Judges
- JK Mulwa
- Legal Topics
- Costs Award, Review of Orders, Judicial Discretion
- 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
Mwanzo Kaptembwa Self Help Group (suing through officials Florence Wangui Ngari and Peter Warui Wamai)
Applicant
Florence Waithera Mungai
Respondent
Peter Kuria Ikua
Respondent
Procedural Posture
Review Application / Ruling on Application for Review of Costs Order
Legal Issues
- 1 Whether the court should review its earlier order to clarify which party is liable to pay the 1st defendant's costs after withdrawal of suit.
- 2 Whether the 1st defendant is entitled to costs and against whom such costs should be awarded.
Ratio Decidendi
The court found that the omission to specify which party should pay the 1st defendant's costs was an error and oversight. Since the 1st defendant was not a necessary party and was dragged into the suit by the plaintiffs, she was entitled to costs. The court exercised its discretion to review and clarify its earlier order, holding that the plaintiffs, having withdrawn the suit against the 1st defendant, should bear the costs jointly and severally. The review was granted to serve justice and correct the oversight, in line with the principles governing costs and judicial discretion under the Civil Procedure Act and Rules.
Court Disposition
Application for review allowed; costs of the withdrawn suit against the 1st defendant to be paid by the plaintiffs jointly and severally.
Orders
- The court's orders dated 9th May 2018 are reviewed to clarify that the 1st defendant's costs following withdrawal of the suit against her shall be paid by the plaintiffs jointly and severally as may be agreed or taxed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CIVIL CASE NO. 188 OF 2012
MWANZO KAPTEMBWA SELF HELP GROUP
Suing through officials
FLORENCE WANGUI NGARI............................1ST PLAINTIFF/APPLICANT
PETER WARUI WAMAI......................................2ND PLAINTIFF/APPLICANT
-VERSUS-
FLORENCE WAITHERA MUNGAI...........1ST DEFENDANT/RESPONDENT
PETER KURIA IKUA...................................2ND DEFENDANT/RESPONDENT
RULING
1. By an application dated 15th May 2018, the court is urged to review its earlier orders dated the 9th May 2018 pursuant to the 1st Defendants application dated 4th August 2014 where the 1st defendant was removed from the suit but did not specify which party was to pay the costs to the 1st defendant and whether the costs were for the application or for the suit. None of the other parties to the suit opposed the application as it was clear to them that its presence in the suit was not necessary.
2. I have considered the parties arguments and list of authorities and in particular Major RTD Godfrey Masaba -vs- IEBC & 2 Others (2013) e KLR and Cecilia Karuru Ngayu -vs- BBK & Another, (2016) e KLRto the effect that a decision whether or not to vary set aside or review earlier orders is a judicial discretion and the court could only do so if the review would serve useful purpose and justice to the parties.
3. In the circumstances of the case whose proceedings I have looked at, the 1st Defendant was not a necessary party and was dragged into court for no good cause by the plaintiffs. However the plaintiffs by their grounds of opposition dated 16th October 2014 thought otherwise, but changed their minds when on the 9th May 2018 they told the court by their advocate Mr. Ooga that they did not wish to oppose the application but sought an order of no costs. Likewise the 2nd Respondent did not oppose the application but sought costs as the 1st defendant had filed a defence.
4. An award of costs by the court is discretionary but circumstances dictate exercise of that discretion – Section 27 Civil Procedure Act. Costs also would follow the event unless the circumstances dictate otherwise.
So that when the 1st defendant’s suit was withdrawn by the party who dragged him to court, necessitating him to seek legal counsel to file a defence on his behalf, then it goes without a doubt that his costs ought be paid unless all parties are in agreement that no costs ought to be awarded.
5. The court in its ruling dated 9th May 2018 in exercise of its discretion awarded costs of the withdrawn suit to the 1st defendant but did not state which party would pay such costs.
This was an oversight and error that ought to be corrected pursuant Order 45 CPR – by an application for review to clarify which party ought to pay the costs.
6. I therefore allow the application dated 15th May 2018 in the following terms that the court orders dated 9th May 2018 are reviewed in suitable terms that the 1st Defendant's costs following the withdrawal of the suit against him shall be paid by the plaintiffs jointly and severally as may be agreed or taxed.
Dated, signed and delivered this 24th Day of January 2019.
J.N. MULWA
JUDGE