[2023] KEHC 25313 (KLR)

NCBA Bank Kenya PLC v Kisaka & another (Civil Appeal E041 of 2021) [2023] KEHC 25313 (KLR) (15 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25313 (KLR)

Republic of Kenya

In the High Court at Voi

Civil Appeal E041 of 2021

GMA Dulu, J

November 15, 2023

Between

NCBA Bank Kenya PLC

Appellant

and

Mathias Kisaka

1st Respondent

Montezuma Monalisa Funeral Home t/a Monalisa Funeral Services

2nd Respondent

(From the ruling in Wundanyi Civil Suit No. 13 of 2019 delivered on 29th June 2021 by Hon. E. Nyakundi (RM)

Judgment

1. In a ruling delivered by the trial Magistrate on 29th June 2021, the learned trial Magistrate concluded as follows:-“17. The application dated 16th October 2020 and filed on 26th November 2020 has merit and the court hereby directs:-a.The interlocutory judgment entered against the 1st defendant is hereby set aside.b.The 1st defendant’s name is hereby struck off this suit.c.Costs of this application be borne by the 1st defendant.

2. The trail court further ordered that the ruling applied in Civil Suit Nos. 5, 6, 7, 10, 12, 14, 44 and 45 of 2019.

3. Dissatisfied with the decision of the trial court with regard to the order for payment of costs, the appellant, who was the 1st defendant in the trial court, has come to this court on appeal through counsel Muriu Mungai & Company LLP Advocates on the following grounds:-1. The learned Magistrate erred in law fact in denying the appellant’s wholly successful party, costs of the application, without giving any reason whatsoever for that denial.2. The learned Magistrate compounded the error of law by ordering the wholly successful appellant to bear the costs, without giving any reason whatsoever for such a punitive order.

4. The appeal was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by Muriu Mungai & Company LLP Advocates for the appellant, as well as the submissions filed by C. B. Gor & Gor Advocates for the 2nd respondents, as well as the submissions filed by M. S. Shariff Advocates for the 1st respondent.

5. This is a first appeal, and I am thus required to evaluate all the evidence on record and come to my own conclusions. In addition, this being an appeal on the exercise of a trial court’s discretion in awarding costs, I have to bear in mind that unless the trial court took into account an irrelevant factor or failed to take into account a relevant factor, an appellate court will not be entitled to interfere with such exercise of discretionary power merely because it feels that it would come to a different conclusion.

6. The discretion of a court to award costs is captured under Section 27 of the Civil Procedure Act which states as follows:-“Subject to such conditions and limitations as may be prescribed, and 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 whom and out of what property and to what extent such costs are to be paid, and to give 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.”

7. In the present appeal, the main thrust of the appellant’s argument is that the trial court did not give reasons for denying the appellant the costs of their successful application, and instead awarded costs against them even after winning in the application.

8. Indeed, the Magistrate did not specifically give reasons for the decision on award of costs against the appellant in the application. However, a perusal of the trial court proceedings shows that the suit was filed and first mentioned in court on 8th October 2019. Before suit was filed demand letters were sent to all proposed defendants including the appellant.

9. The matter came up again for mention a number of times and on 12th November 2019 it was fixed for pre-trial directions on 21st November 2019, on which date it was fixed again for pre-trial directions on 16th January 2020. On 21st January 2020 a request for judgment against 1st defendant, now the appellant was made in court. All this time, there was no information received in court from the appellant.

10. I note also that the subject application in which the orders of costs were made against the appellant, had one of the main prayers as setting aside the above ex-parte judgment, on the ground that the appellant was wrongly joined as a party. That reason was upheld by the trial court but costs were still awarded against the appellant herein.

11. In my view, from the record of the proceedings in the trial court, the Magistrate acted judiciously in awarding costs. This is because the appellant chose to be an uninterested by-stander in a matter that was heading to court wherein they were given notice. They also chose to be by standers when proceedings were commenced in court and they were served with process.

12. The appellant in my view, lost their right to costs when they chose not to respond to the demand letter to deny liability, or to enter appearance in court, and object to them being joined as a party, before entry of interlocutory judgment by court.

13. In my view, the court could only exercise its discretion in awarding costs in their favour if they explained the reasons why they did not respond to the proceedings. Short of that, the trial court had the discretion to make the orders on costs as it did. The appellants not having made such an explanation even to date, this appeal will not succeed.

14. I will thus disallow the appeal. As to the costs of appeal, since costs are not meant to be a punitive measure but a recoupment of monetary burdens incurred, and counsel for the parties herein have been the same, I order that parties will bear their respective costs of the appeal.

15. Consequently, I dismiss the appeal of the appellant. I however, order that parties will bear their respective costs of this appeal.

DATED, SIGNED AND DELIVERED THIS 15TH DAY OF NOVEMBER 2023 VIRTUALLY AT VOI.GEORGE DULUJUDGEIn the presence of:-Alfred – Court AssistantMs. Cheruiyot – holding brief for Mr. Kongere for appellantNo appearance for respondent