[2022] KEHC 10804 (KLR)

Okerio (Suing as personal representative in the Estate of Kelvin Nyang’au Onduko (Deceased) v Chege (Civil Appeal 59 of 2020) [2022] KEHC 10804 (KLR) (3 August 2022) (Judgment)

Neutral citation: [2022] KEHC 10804 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal 59 of 2020

MW Muigai, J

August 3, 2022

Between

Kennedy Onduko Okerio

Appellant

Suing as personal representative in the Estate of Kelvin Nyang’au Onduko (Deceased

and

Samuel Chege

Respondent

(Being an appeal from the part judgment and order of Hon. I M. Kahuya, (Senior Resident Magistrate) delivered on 19th day of December, 2019 in Machakos CMCC No.544 of 2018)

Judgment

Plaint and Amended Plaint Filed on 27/08/2018 & 1/04/2019 1. By the Plaint dated 17th August, 2018 and filed on 27th August, 2018, the Appellant as the Plaintiff sued the Respondent as the 1st Defendant with other two Defendants namely Kassam Hauliers Limited and Samuel Chege in Machakos CMCC No 544 of 2018. The Appellant sought general damages under the Fatal Accidents Act and Law Reform Act, Special Damages of Kshs 532,480/-, cost of this suit and interest from the date of filing this suit against the Defendants.

2. The Plaint was later amended vide an Amended Plaint dated 1st April, 2019 and filed on the same date.

3. The Plaintiff pleaded that the cause of action arose from a road traffic accident that occurred on 8th day of May, 2017 along Nairobi- Mombasa Highway at Kyumbi area, Machakos County. The deceased herein was travelling as a lawfully fare paying passenger in Samuel Chege, the 3rd Defendant’s motor vehicle registration No KBW 614 Z, Mitsubishi minibus which was involved in an accident with Philip Mbithi, the1st Defendant’s motor vehicle registration No KCA 987 T Mercedes Benz, trailer registration No ZB 5560.

1st and 2nd Defendants Statement of Defence Filed on 21/09/2018. 4. The 1st and 2nd Defendants denied each and every Appellant’s averments in the Plaint save for the address of service pleaded in the Plaint. They pleaded that if the accident occurred the same was solely caused by the negligence and/or recklessly of the deceased and the Appellant/3rd Defendant authorized driver, agent and/or servant.

5. The 1st and 2nd Defendants pleaded particulars of negligence against deceased and the driver, servant, agent and/or employee of motor vehicle registration number KBW 614Z which this court will consider in the analysis and determination of this Appeal.

6. The 1st and 2nd Defendants denied liability in toto and averred that the claim against them is totally untenable, misconceived and misdirected. They asserted that the suit against them is incompetent, frivolous, vexation and an abuse of the court process for not disclosing a reasonable cause of action. They pleaded that the Plaintiff suit be dismissed with costs.

Respondent/3rd Defendant Statement of Defence Filed on 1/08/2019 7. The 3rd Defendant’s Statement of Defence is dated 31st July, 2019 and filed on 1st August, 2019. He denied each and every Appellant’s averments in the Plaint save for the description of the parties as pleaded in the Plaint.

8. He pleaded that if the accident occurred he was not to blame in any way as the deceased had already alighted from his motor vehicle. He put the Appellant to strict proof of any contrary allegations. Further he pleaded that if the accident occurred as pleaded, the same was entirely caused by the negligence of the deceased and the driver of motor vehicle KCA 987T. He denied the particulars of negligence against him and put the Appellant to strict proof.

9. The 3rd Defendants pleaded particulars of negligence against the deceased and the driver of motor vehicle registration number KCA 987T which this court will consider in the analysis and determination of this Appeal.

10. The 3rd Defendant urged the Trial Court to dismiss the suit against him with costs.

Reply to the Statement of Defence Filed on 17/10/2018 & 17/09/2019 11. The Plaintiff reiterated the contents of his Amended Plaint against the 1st, 2nd and Respondent/3rd Defendant allegations pleaded in their Statement of Defence and denied as pleaded by the 1st, 2nd and Respondent/3rd Defendants that if any accident occurred it was caused and/or contributed by the negligence of the deceased as the same was solely caused by the negligence, breach of statutory duty of care of the Defendants.

12. The Plaintiff urged the court dismiss the Defendants Statement of Defence with costs.

Interlocutory Judgment against the 3rd Defendant Entered on 23/10/2018 13. The Appellant vide his Request for Judgment filed on 17th October, 2018 requested for judgment against the 3rd Defendant for the liquidated sum of Kshs510, 080/-. The court found that the 3rd Defendant had been duly served with Summons to enter appearance but failed to enter appearance and/or file his defence within the stipulated period. The interlocutory judgment was entered against the 3rd Defendant for the sum of Kshs510, 080/- with costs.

3rd Defendant Notice of Motion Filed 27/11/2018 14. The 3rd Defendant filed the Notice of Motion premised on Order 1 Rule 10(2) and 14 of the Civil Procedure Rules and Section 1A, 1B and 3A of the Civil Procedure Act seeking inter alia orders that his name be struck out from the suit and the court to set aside the ex parte Judgment and all consequential orders entered against him to allow him defend against the Plaintiff’s claim.

Plaintiff’s Grounds of Opposition & Replying Affidavit Filed 10/01/2019 15. The Plaintiff’s opposition was premised on 10 grounds enumerated therein and his replying affidavit sworn on 9th January, 2019. The Plaintiff urged the Trial Court to dismiss the application with costs.

Trial Court’s Ruling Delivered on 21/03/2019 16. The Trial Magistrate dismissed the order seeking to set aside the exparte judgment and all other consequential orders on the basis that the 3rd Defendant’s application was filed under the wrong rules instead of Order 10 Rule 4 of the Civil Procedure Rules. The 3rd Defendant could not be struck out of the suit on the fact that the 3rd Defendant’s was an interested party/3rd party with the respect to the accident since his motor vehicle had been involved in the accident.

17. The Trial Magistrate directed the Plaintiff to amend his Plaint to disclose the cause of action he had against the 3rd Defendant despite dismissing the 3rd Defendant’s application.

Evidence on 6/11/2019 18. PW1 No 77247 PC Tomno of Machakos Police Station stated that on 8/05/2017, an accident occurred along Nairobi – Mombasa Highway involving motor vehicles KBW 614Z Mitsubishi, KCC 730 T and KCA 987 T. He stated that KBW 614Z, Mini Bus was being driven from Nairobi-Machakos direction while motor vehicle KCC 730T was ahead of it. It was PW1testimony that motor vehicle KBW 614Z hit motor vehicle KCC 730T on the rear but nobody was injured. In addition, PW1 stated that a pick up ensued and before long motor vehicle KCA 987T which was coming from the opposite direction started overtaking and in the process hit motor vehicle KCC 730T and KBW 614Z and as a result some passengers in the motor vehicle KBW 614Z Minibus were injured while others died. He stated that the police visited the scene of accident and booked the accident under OB No 2/9/8/2017.

19. It was PW1 testimony that after investigations, it was found that the driver of motor vehicle KCA 981T was to blame for the accident and charged with the offence of causing death by dangerous driving in Traffic Case No566 of 2017 which is still pending before the Court. He stated that they later issued a police abstract (Pexh 1) to the dependant of one Kelvin Onduko who succumbed to his injuries. According to PW1, Kelvin Onduko was a passenger in the Minibus Reg. No KBW 614Z.

20. In cross-examination by Jerobon, PW1 stated that the entire accident involved 3 motor vehicles whereby the initial accident involved motor vehicles Reg No KCC 730T and KBU 614Z heading in the same direction. He stated that motor vehicle KCA 987 T overtook recklessly resulting in the major accident that is subject of this suit. According to PW1 he is not the investigating officer.

21. PW2 Kennedy Onduko Okeno adopted his witness statement dated 17/8/2018 as his evidence in chief. He relied on his list of documents dated 17/8/2018 which he produced as exhibit 1 to 8. He did pray for compensation as pleaded in his Plaint.

22. In cross-examination by Jerobon, PW2 stated that his son was a University student but during the holiday he would engage in private practice at the local schools. PW2 stated that whatever little his son made assisted in paying school fees for his other siblings.

23. The hearing of the Plaintiff’s case before the Trial Court was closed. The Defendants did not testify.

Trial Court’s Judgment Delivered on 19/12/2019 24. The Trial Magistrate found the 1st and 2nd Defendants liable 100% as the 2nd Defendant’s motor vehicle being driven by the 1st Defendant left its lawful lane and hit the Respondent/3rd Defendant’s motor vehicle. According to the Trial Magistrate, that evidence was not challenged hence no liability could be attached on the 3rd Defendant. The Trial Magistrate dismissed the suit against the Respondent/3rd Defendant with costs.

Plaintiff’s Notice of Motion Filed on 6/01/2020 25. In the Notice of Motion, the Plaintiff sought and order to recall the Trial Court judgment with a view of reviewing the order of costs awarded to the 3rd Defendant and upon reviewing the judgment, the said order of costs be set aside and/or varied with an order awarding no costs.

Trial Court’s Ruling Delivered on 19/02/2020 26. In his ruling, Hon. C.N Ondieki SRM found the issue of costs would more appropriately be addressed by the Appellate Court.. In his view, the issues are argumentative hence he proceeded to decline to grant the orders sought in the application. However, to avoid the grievance being rendered nugatory, he granted a stay of execution limited to the costs awarded to the Respondent/3rd Defendant for 30 days from the date of the ruling.

Memorandum of Appeal Filed on 11/08/2020 27. Aggrieved, the Appellant has appealed solely against the award of costs to the Respondent/3rd Defendant based on the following grounds:-(1)That the Learned Trial Magistrate erred in law and in fact by failing to exercise her discretion judiciously when she made an award of costs to the respondent herein.(2)That the Learned Trial Magistrate misdirected herself by failing to apply the salient provisions of the Section 27(1) of the Civil Procedure Act in dealing with costs thereby arriving at an erroneous findings and conclusion.(3)That the Learned Trial Magistrate in awarding costs to the Respondent herein.(4)That the Learned Trial Magistrate failed to appreciate, evaluate, analyze, consider and take into account the entire proceedings and especially the proceedings of the 19th day September, 2019 and the Consent order recorded before her on material date thereby arriving at the wrong findings and conclusion by awarding costs to the Respondent.(5)That the Learned Trial Magistrate was not fair to the Appellant in awarding costs to the Respondent.

28. The Appellant has urged this Court to grant the following orders;(a)The Appeal be allowed and the judgment by the Trial Court delivered on the 19th day of December, 2019 awarding the costs to the Respondent be set aside with an order that each party do bear its own costs.(b)Costs of this Appeal be awarded to the Appellant.(c)Any other and or further relief that this Court may deem fit to grant under the circumstances of this case and for the ends of justice to be met and prevail.

Appellant’s Submissions Filed on 17/01/2022 29. The Appellant has consolidated the grounds of appeal 1, 2, 4 and 5 as one ground. According to the Appellant, the two issues for determination in this Appeal are;a.Whether the Appeal is meritoriousb.Who should bear the costs of the Appeal.

30. On the first issue, it was submitted that the discretion of Court to grant or withhold costs is enshrined in Section 27 of the Civil Procedure Act. Reliance was placed in the following; The Party of Independent Candidates of Kenya v Mutula Kilonzo & 2 others, HC EP No 6 of 2013 and the book by Richard Kuloba, Judicial Hints on Civil Procedure, 2nd Edition at page 101.

31. It was submitted that first, the discretion should be exercised judiciously, meaning without caprice or whim and on sound reasoning. Reliance was placed on the principles enunciated by the court in Githiaka v Nduriri [2004] 2 KLR. Secondly, it is submitted that a court can only withhold costs either partly or wholly from a successful party for good cause to be shown.

32. Reference was made to the case of Edward Sargent v Chotobha Jhaverbhat Patel [1949] 16 EACA 63 where it was held that an Appeal does lie to an Appellate Court against an order made in the exercise of judicial discretion, but the Appellate Court will interfere only if it can be shown that the discretion was exercised injudiciously. Reliance was also made to the case of Mbogo & another v Shah [1968]EA 93 at page 96 where the Court set out the principles that guide the appellate court in the exercise of the mandate to interfere with the injudicious exercise of discretion.

33. According to the Appellant, the Trial Magistrate exercised her discretion injudiciously for the following reasons;a.Apart from unsuccessfully moving the court to set aside interlocutory judgment entered against him, the Respondent never set foot again in court for the hearing of the suit.b.The Learned Trial Magistrate seems not to have read and appreciated the entire court proceedings given that on the 9th day of October 2019, she reinforced the interlocutory judgment against the Respondent meaning there was no defense on record.c.The Appellant suit against the Respondent in the Trial Court remains undefended and by awarding costs to the Respondent, the Learned Trial Magistrate exercised her discretion injudiciously.

34. The Appellant placed reliance on Chief Justice John Marshall in Osborn v Bank of the United State,22U.S 738{1824} that judicial power is never exercised for the purpose of giving effect to the will of judge but for purposes of giving effect to the will of the legislature and/or the law. It was therefore submitted that the Trial Magistrate did not exercise his judicial power for the purposes of giving effect to the will of the law.

35. As to whether the Trial Magistrate applied wrong principles of law to award the costs to the Respondent/3rd Defendant, reliance was placed on the case of Matigari General Merchants Ltd & another v Nelly Wairimu Muthoni & another; Rose Wamuyu Wandaka (interested party) [2021] eKLR.

36. It was submitted that at the time of instituting the court proceedings, the 1st Defendant whom the police had preferred traffic charges against was yet to be found guilty of causing the accident where he was charged vide Machakos Traffic Case No 566 of 2017 as per the evidence of PW1, therefore the Trial Magistrate applied the wrong principles of law in absolving the Respondent thus awarding him costs.

37. It was finally submitted that this Court should allow the appeal by setting aside the judgment of the Trial Magistrate in awarding costs to the Respondent/3rd Defendant and substitute it with an order that each party do bear its own costs.

38. The Respondent did not file their written submissions despite his advocate on 6th December, 2021 being granted 21 days to comply.

Determination 39. I have considered the grounds of appeal and submission filed.

40. I associate myself with the pronouncement of the Supreme Court as regards how it approaches the question of costs in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, Petition No 4 of 2012, where the Court held:“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 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.”

41. The Supreme Court went ahead to state:“(18) It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation.”

42. This being an appellate court in respect of the appeal herein, it can only interfere with the Trial Court’s judgment as explained by the Court of Appeal in the case of Supermarine Handling Services Ltd v Kenya Revenue Authority Civil Appeal No 85 of 2006 where the Court expressed itself thus:“Costs of any action or other matter or issue shall follow the event unless the Court or Judge shall for good reason otherwise order. It is well established that when the decision of such a matter as the right of a successful litigant to recover his costs is left to the discretion of the Judge who tried his case, that discretion is a judicial discretion, and if it be so its exercise must be based on facts. If, however, there be, in fact, some grounds to support the exercise by the trial Judge of the discretion he purports to exercise, the question of sufficiency of those grounds for this purpose is entirely a matter for the Judge himself to decide, and the Court of Appeal will not interfere with his discretion in that instance.....”

43. It follows therefore that this court will interfere where the Trial Court’s discretion to award costs has been exercised unjudicially or on based on wrong principles. It will also interfere where the reasons given are those reasons which do not constitute “good reason” within the meaning of the rule.

44. As to what amounts to good reason has not been defined under the Civil Procedure Act but the Supreme Court in the case of Jasbir Singh Rai & others. v Tarlochan Rai & others (supra) observed that:“in the classic common law style, the courts have to proceed on a case by case basis, to identify “good reasons” for such a departure…”

45. In Section 27(1) (supra), the guiding phrase to court should be “costs follow the event’.Justice (Retired) Richard Kuloba in Judicial Hints on Civil Procedure, 2nd Edition, page 99 states as follows:-“The words “the event” mean the result of all the proceedings to the litigation. The event is the result of the entire litigation. It is clear however, that the word “event” is to be regarded as a collective noun and is to be read distinctively so that in fact it may mean the “events” of separate issues in an action. Thus the expression “the costs shall follow the event” means that the party who on the whole succeeds in the action gets the general costs of the action, but that, where the action involves separate issues, whether arising under different causes of action or under one cause of action, the costs of any particular issue go to the party who succeeds upon it. An issue in this sense need not go to the whole cause of action, but includes any issue which has a direct and definite event in defeating the claim to judgement in the whole or in part”

46. Justice (Retired) Richard Kuloba has gone ahead to authoritatively state at page 101:“The law of costs as it is understood by courts in Kenya, is this, that where a plaintiff comes to enforce a legal right and there has been no misconduct on his part-no omission or neglect, and no vexatious or oppressive conduct is attributed to him, which would induce the court to deprive him of his costs-the court has no discretion and cannot take away the plaintiffs right to costs. If the defendant, however innocently, has infringed a legal right of the plaintiff, the plaintiff is entitled to enforce his legal right and in the absence of any reason such as misconduct, is entitled to the costs of the suit as a matter of course”

47. In Matigari General Merchants Ltd & another v Nelly Wairimu Muthoni & another; Rose Wamuyu Wandaka (Interested Party) [2021] eKLR, Odunga J stated:“50. In determining the issue of costs, the Court is entitled to look at inter alia the conduct of the parties, the subject of litigation, the circumstances which led to the institution of the legal proceedings, the events which eventually led to their termination, the stage at which the proceedings were terminated, the manner in which they were terminated, the relationship between the parties and the need to promote reconciliation amongst the disputing parties pursuant to Article 159(2)(c) of the Constitution. In other words, the court may not only consider the conduct of the party in the actual litigation, but the matters which led up to litigation, the eventual termination thereof and the likely consequences of the order for costs. See Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd [1967] EA 287 and Mulla (12th Edn) P. 150. ”

48. In Cecilia Karuru Ngayu v Barclays Bank of Kenya & another [2016] eKLR I Mativo J was of the opinion that the conduct of the parties prior and after filing this suit is a relevant issue.

49. The Appellant contends that the Respondent apart from moving the court to set aside interlocutory judgment against him which application was denied as per the Ruling of 21st March 2019, the Respondent has never set foot in court for the hearing of the suit. I have no doubt about the Appellant’s assertion since the Trial Court proceedings do not bear the oral evidence of the Respondent despite there being a statement of defense filed on behalf of the Respondent on record.

50. The interlocutory judgment was entered against the Respondent on 23rd October, 2018 for the sum of Kshs 510,080/- with costs. The Trial Court proceedings show that there are several court attendances on behalf of the Respondent by his advocate even after the interlocutory judgment was dismissed and judgment remained against him and during the hearing neither the Respondent nor his advocate attended court.

51. On 1st August, 2019, Mr. Morara for the Appellant informed court that the Respondent had served them with his Amended defence and through Mr. Morara holding brief for Muia for the Respondent, he confirmed service of the same and consented to taking a hearing date.

52. The Appellant has asserted that the Trial Magistrate failed to appreciate, evaluate, consider and take into account the court proceedings of 19th September, 2019 and the consent order recorded on 3rd July, 2019. The consent was dated 13th August, 2019 and filed on 19th September, 2019 between the Appellant and the Respondent to allow the Respondent file his defence on condition that he pays throw away costs of Kshs 10,000/-.

53. On 19th September, 2019, when the suit was coming up for hearing, the Respondent was represented by Mr. Githinji who was holding brief for Mr. Muriuki and in his presence, the consent was adopted as an order of the court. However still on the same day Mr. Githinji sought and adjournment on the basis that he had just discovered that the Respondent had been represented by two advocates. Mr. Morara for the Appellant was ready to proceed with the hearing since he had three witnesses. As a result of the adjournment, the Trial Magistrate allowed the adjournment but subject to payment of court adjournment fees by the Respondent and a mention was fixed for 9th October, 2019 but neither the Respondent nor his advocate were present in court hence the Trial Magistrate reinforced the interlocutory judgment herein.

54. The matter was fixed for hearing but neither the Respondent nor his advocate was present in court. There was no indication whether the Respondent had paid the adjournment fee or the throw away costs as per the adopted consent.

55. The evidence shows that for the determination of the dispute conclusively, the participation of the Respondent whose motor vehicle was involved in the accident was important. The cause of action against the Respondent raised triable issues that were necessary for the just determination of the suit.

56. The court’s view is that there is no basis to condemn the Appellant to pay any costs to the Respondent merely because the suit against the Respondent failed. The Trial Magistrate in her ruling of 21st March, 2019 observed that the Respondent was a person of interest with respect to the accident.

57. The Trial Magistrate observed that it was the 2nd Defendant’s motor vehicle KCA 987T driven by the 1st Defendant that left its lawful lane and hit the Respondent/3rd Defendant’s motor vehicle KBW 614Z in which the deceased was lawfully travelling in as a fare paying passenger, this evidence was not challenged in court by any other evidence.

58. Despite lack of Respondent’s evidence since he did not participate in the hearing, PW1 No 77247 PC Tomno explained how the accident occurred and who was to blame. According to PWI, the investigations found the driver of KCA 981T to blame for the accident and was charged for a traffic offence. The Trial Magistrate noted that the deceased was a passenger hence no blame could have been apportioned against him.

59. None of the Defendants testified in support of their case before the Trial Court despite them filing their statement of defence to deny the particulars of negligence pleaded by the Plaintiff against them. The particulars of negligence pleaded by the Defendants against each other remain mere allegations since no oral/viva voce evidence was adduced and subjected to cross-examination by the Appellant’s advocate. The findings of the Trial Magistrate that the Respondent was not to blame were based on the evidence of PW1 as well as the documentary evidence on record.

60. In Janet Kaphiphe Ouma & another v Marie Stopes International (Kenya) Kisumu HCCC No 68 of 2007 Ali-Aroni J citing the decision in Edward Muriga Through Stanley Muriga v Nathaniel D. Schulter Civil Appeal No 23 of 1997 held that:“In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st Plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations...Section 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence.”

61. In Orix ( K) Limited v Paul Kabeu & 2 others [2014]eKLR the court held inter alia:-“………the court should have been guided by the law that costs follow the event, and the plaintiff being the successful party should ordinarily be awarded costs unless its conduct is such that it would be denied costs or the successful issue was not attracting costs. None of the deviant factors are present in this case and the court would still have awarded costs to the plaintiff, which I do.”

62. From the foregoing, the court finds that the conduct of the Respondent did not warrant granting costs of the suit to him despite the suit being dismissed against him. The Trial Magistrate did not apply her discretion judiciously. Although at the end the Respondent was absolved of any blame, the interlocutory judgment remained on record and the application to set it aside was dismissed.

Dispositiona.In the premises, the court finds that the Appeal has merit and the same is hereby allowedb.The costs awarded to the Respondent in the Trial Court Judgment in Machakos CMCC No 544 of 2018 is hereby set aside and substituted with no orders as to costs.c.The Appellant shall have the costs of this appeal.It is so ordered.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 3RD AUGUST 2022. (VIRTUAL CONFERENCE)M.W. MUIGAIJUDGE