[2012] KEHC 2910 (KLR)
The court found that the unique circumstances of the case, including the fact that the application was wholly undefended and the purpose of the application was to clarify which of two decrees should proceed to execution, constituted sufficient reason under Order 45 Rule 1(1) to review the previous order on costs....
Source-derived case information.
- Citation
- [2012] KEHC 2910 (KLR)
- Parties
- Plaintiff: Ocean View Beach Hotel; Defendant: Kenya Power & Lighting Company Ltd.
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Commercial Civil Suit 14 of 2002
- Procedural Posture
- Review Application / Ruling on Application for Review of Costs Order
- Outcome
- application for review allowed in part; costs order reviewed
- Legal Topics
- Review of Court Orders, Costs Awards, Unopposed Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ocean View Beach Hotel
Plaintiff
Kenya Power & Lighting Company Ltd.
Defendant
Procedural Posture
Review Application / Ruling on Application for Review of Costs Order
Legal Issues
- 1 Whether the court should review its previous order on costs in light of the application being unopposed.
- 2 Whether sufficient reason exists under Order 45 Rule 1(1) to warrant review of the costs order.
Ratio Decidendi
The court found that the unique circumstances of the case, including the fact that the application was wholly undefended and the purpose of the application was to clarify which of two decrees should proceed to execution, constituted sufficient reason under Order 45 Rule 1(1) to review the previous order on costs. The court determined that it would be inappropriate to encumber the defendant/applicant with costs in these circumstances and that the proper order should be that costs are to be in the cause. The court therefore reviewed and amended its previous ruling to reflect this position.
Court Disposition
application for review allowed in part; costs order reviewed
Orders
- The last paragraph of the ruling dated 16th February, 2012 on costs is reviewed to read: 'The application herein is therefore dismissed. Costs shall be in the cause, and the extent interim orders of 9th June, 2011 issued by this court are hereby vacated.'
- The costs of the present application shall also be in the cause.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
Commercial Civil Suit 14 of 2002
OCEAN VIEW BEACH HOTEL ………………………….....……..PLAINTIFF/RESPONDENT
VERSUS
KENYA POWER & LIGHTING COMPANY LTD.………………………………………..…………..DEFENDANT/APPLICANT
RULING
1. The application herein dated 18th March, 2012 seeks that the honorable court do review its Ruling dated 18th February, 2012 with regard to the order directing the Defendant applicant to pay costs. It is premised on the grounds that the application subject of the Ruling before court was unopposed, and that it will cause prejudice to the Defendant applicant to be referred to pay costs.
2. This application was responded to by the Replying Affidavit of John Owiti Senior Manager of the Plaintiff sworn on 19th April, 2012. Essentially he says that the Applicant cannot intimate that the court acted without a legal mind, and that nothing has cropped up to warrant the court to disturb its earlier ruling.
3. The parties were directed to file written submissions but only the applicant did so, despite an extension of time. The applicant quoted my earlier Ruling where I found as follows:
Paragraph 15: “The Notice of change of Advocates and the Preliminary Objection are invalidly on record and are hereby expunged”
Paragraph 16: “The motion herein is wholly undefended”.
4. Order 45 Rule 1 (1) which is invoked in the application provides for review. It gives the court a wide discretion for review when new matters or evidence have been discovered, or there is a mistake or error apparent on the face of the record or “for any other sufficient reason”.
5. Having read through my said earlier Ruling and having further noted that I observed the unique circumstances of the case and that it would be inappropriate for this court to usurp the functions of the lower court, (paragraph 20) and further that there was gravity in the matters raised by the Defendant/ Applicant by that application (paragraph 21) which was brought to clarify which of two decrees issued was to proceed to execution, I am satisfied that there is “sufficient reason” in terms of order 45 to review my earlier decision.
6. It is evident that my Ruling was sought to bring clarity to the question of which of two rulings should be executed and how that would be done. Accordingly, I am satisfied that, although I dismissed the Defendant/Applicant’s application, the correct order as to costs should have been “Costs in the cause”. The Defendant Applicant should not have been encumbered with the costs in this case”.
7. Accordingly, I hereby review the last paragraph of my said Ruling dated 16th February, 2012 on costs, so that the order shall hence forth read as follows:
“The application herein is therefore dismissed. Costs shall be in the cause, and the extent interim orders of 9th June, 2011 issued by this court are hereby vacated.”
The costs of the present application shall also be in the cause.
Dated, signed and delivered this 26th day of July, 2012.
R.M. MWONGO
JUDGE
Read in open court
Coram:
1. Judge:Hon. R.M. Mwongo
2. Court clerk:R. Mwadime
In Presence of Parties/Representative as follows:
a)………………………………………………………………
b)………………………………………………………………
c)………………………………………………………………
d)……………………………………………………………….