[2024] KECA 783 (KLR)
The court held that the application sought substantive orders to set aside the findings of the taxing master, which is not within the jurisdiction of a single judge of the Court of Appeal. Such matters must be referred to a full bench for determination. The judge therefore declined to make any orders on the...
Source-derived case information.
- Citation
- [2024] KECA 783 (KLR)
- Parties
- Applicant: Dolphine Nyangara Onkoba; Respondent: Michelle Kemuma Omwoyo; Respondent: Independent Electoral & Boundaries Commission; Respondent: Jubilee Party
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Election Petition (Application) E014 of 2023
- Procedural Posture
- Election Petition Application / Ruling on Application to Set Aside Taxation of Costs
- Outcome
- Application declined for want of jurisdiction; to be listed before a full bench.
- Judges
- HA Omondi
- Legal Topics
- Taxation of Costs, Election Petition Appeals, Judicial Discretion in Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dolphine Nyangara Onkoba
Applicant
Michelle Kemuma Omwoyo
Respondent
Independent Electoral & Boundaries Commission
Respondent
Jubilee Party
Respondent
Procedural Posture
Election Petition Application / Ruling on Application to Set Aside Taxation of Costs
Legal Issues
- 1 Whether a single judge of the Court of Appeal has jurisdiction to set aside the decision of the taxing master in an election petition appeal.
- 2 Whether the taxing master exercised discretion judiciously in awarding costs to the 1st respondent.
- 3 Whether the complexity and nature of election petition appeals warrant higher costs.
Ratio Decidendi
The court held that the application sought substantive orders to set aside the findings of the taxing master, which is not within the jurisdiction of a single judge of the Court of Appeal. Such matters must be referred to a full bench for determination. The judge therefore declined to make any orders on the application and directed that it be listed before a full bench. The court did not address the merits of the taxation or the quantum of costs, focusing solely on the procedural propriety and jurisdictional competence of a single judge to entertain the application.
Court Disposition
Application declined for want of jurisdiction; to be listed before a full bench.
Orders
- No orders made on the application.
- Application to be listed before a full bench of the Court of Appeal.
Full Case Text
Judgment text and source record
25 paragraphs
Onkoba v Omwoyo & 2 others (Election Petition (Application) E014 of 2023) [2024] KECA 783 (KLR) (5 July 2024) (Ruling)
Neutral citation: [2024] KECA 783 (KLR)
Republic of Kenya
In the Court of Appeal at Kisumu
Election Petition (Application) E014 of 2023
HA Omondi, JA
July 5, 2024
Between
Dolphine Nyangara Onkoba
Applicant
and
Michelle Kemuma Omwoyo
1st Respondent
Independent Electoral & Boundaries Commission
2nd Respondent
Jubilee Party
3rd Respondent
(Being an application from the Judgment of the High Court of Kenya at Nyamira (Njuguna, J.) dated 29th May 2023inElection Petition Appeal No. E001 of 2022 as consolidated withE001 of 2023 and E003 of 2023)
Ruling
1. By the Chamber Summons application dated 5th February 2024, the applicant seeks that: the ruling of the learned Taxing Master dated 25th January 2024 be set aside in its entirety; this Court does award the 1st respondent reasonable costs for defending this appeal; in the alternative, the 1st respondent's Party and Party Bill of Costs dated 25th October 2023 be referred to a different Taxing Master for fresh taxation; and costs of this application and interest thereon be awarded to the 1st respondent. The application is supported by the affidavit of Michelle Kemuma Omwoyo.
2. By the ruling of this Court delivered on 24th October 2023, the appellant’s appeal was struck out with costs to the 1st and 2nd respondents. The 1st respondent filed her Party and Party Bill of costs dated 25th October 2023. By the ruling of the learned taxing master delivered on 25th January 2024, the learned Deputy Registrar allowed the 1st respondent's Party and Party Bill of Costs to the tune of Kshs.322,3000/-. The applicant contends that the earned taxing master did not exercise his discretion judiciously, and improperly disregarded factors which he ought to have considered.
3. The applicant laments that the costs awarded were manifestly low, and failed to appreciate that election petition appeals by their very nature are complex, technical and high-stake cases.; that the Election Petition Appeal which was the subject of this reference proceedings cannot be said to have been a straight forward one as contended by the learned taxing master in his ruling; and this Court ought to interfere with the decision.
4. In opposing the application, the respondent submits that taxation of costs is not a mathematical exercise; and the Taxing Master is enjoined to adopt a flexible and sensible approach to the task of striking the balance while taking into account the particular features of the case. Further, that in principle, costs are awarded, having regard to such factors as:a.The difficulty and complexity of the issues;b.the length of the trial;c.value of the subject matter andd.other factors which may affect the fairness of an award of costs.
5. Basically, what the applicant seeks is for setting aside of the findings by the taxing master, and that is not a matter for a single judge. I therefore decline to make any orders in relation to the application; and direct that it be listed before and such is for a full bench.
DATED AND DELIVERED AT KISUMU THIS 5TH DAY OF JULY, 2024. H. A. OMONDI.....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR