[2022] KEHC 11908 (KLR)

Patrick Lutta t/a Lutta & Company, Advocates v Ishvinder Kaur Kalsi Marwa t/a Ishi Kaisi & Company, Advocates (Commercial Case E025 of 2018) [2022] KEHC 11908 (KLR) (Commercial and Tax) (22 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11908 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Commercial Case E025 of 2018

DO Chepkwony, J

July 22, 2022

Between

Patrick Lutta t/a Lutta & Company, Advocates

Plaintiff

and

Ishvinder Kaur Kalsi Marwa t/a Ishi Kaisi & Company, Advocates

Defendant

Ruling

1. The application herein is instituted vide a notice of motion dated November 8, 2021 and is seeking for orders that;a.Spent;b.This honorable court be pleased to review its judgment delivered on October 15, 2021 and make an order as to costs;c.Costs of this application be provided for;d.This honorable court be pleased to make such further orders it deems fit to meet the ends of justice.

2. The application is premised on the grounds that on October 15, 2021 allowed the applicant’s originating summons dated May 23, 2018 in terms of prayers No (2) and (3) and failed to make any order as to costs despite the same having been prayed for. It is stated that based on the above, there is an error apparent on the face of the record which this court has the power to review and correct. That this application has been brought without undue delay and it is in the interest of justice that the same is allowed.

3. The application is opposed vide the replying affidavit of Ishvinder Kaur Kalsi Marwa sworn on January 21, 2022, wherein it is stated that the said application is an abuse of the process of this court by the fact that this honorable court is functus officio. That the application does not meet the standards set out under order 45 rule 1 of the Civil Procedure Rules,2010 and is an attempt by the applicant to reopen its case and re-litigate the prayers in his originating summons dated May 23, 2018 which the court declined to award. Also, it is deponed that there is no error apparent on the face of the record since the court was well aware of the prayers sought including the prayer for costs which it has the unfettered discretion to grant or deny and which, in its discretion, it deliberately chose not to award. Further, that if the plaintiff is dissatisfied with the judgment in question, then he is free to file an appeal on the specific issue of costs. It then submits that the instant application has no merit and the same ought to be dismissed with costs to the respondent.

4. On November 18, 2021 among the other directions, the parties were directed to canvass the application by way of written submission, with each side having granted 14 days within which to do so. The plaintiff complied and filed its submission dated December 20, 2021 whileas the defendant filed their submissions on April 28, 2022.

5. According to the plaintiff in his submission, in its judgment delivered on October 15, 2021, while granting orders in respect of the originating summons dated May 23, 2018, the court failed to pronounce itself or make an order as to costs despite the same being one of the remedies the plaintiff had sought in his application. It is therefore the plaintiff’s prayer that the court ought to deem the omission as an error apparent on the face of the judgement.

6. On the other hand, the defendant has submitted that the application for review in this case does not meet the threshold set out under section 80 of the Civil Procedure Act and order 45 rule 2(1) and 3(2) of theCivil Procedure Rules since on the face of the record, the court was alive to the reliefs the applicant had sought in the originating summons, including the prayer for costs but did not award the same. He submits what the plaintiff is seeking to do vide these originating summons is to re-open and re-litigate specific reliefs which the court in exercising its discretion declined to award. The defendant has relied on the cases of Nyamugo and Nyamugo Advocates –vs- Kogo[2001]1EA and Bank Fur Arbeit Und Wirtschaft AG –vs- AG & Another[1999]eKLR in urging this position. Also the defendant/respondent has submitted that having rendered its judgment in this case on October 15, 2021, the court became functus officio so that if it is aggrieved by the failure by the court to award it costs, the same constitutes a good ground for an appeal. The defendant has urged the court to find that litigation must come to an end and dismiss the application dated May 8, 2021 for want of merit.

Determination 7. In consideration of the prayer sought by the plaintiff/applicant, I have read through the originating summons dated May 23, 2018, the affidavits sworn by either party in support and opposition of the application. What clearly comes up for determination is whether there is an apparent error on the face of the judgment in the court not making an order as to costs in the judgment.

8. The power or jurisdiction for review by a court is vested in section 80 of the Civil Procedure Act and order 45 rule 2(1) and 3(2) of the Civil Procedure Rules. section 80 of the Civil Procedure Act provides as follows:-'Any person who considers himself aggrieved—a.by a decree or order from which an appeal is allowed by this act, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is allowed by this act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit'.

9. The Court of Appeal in the case of National Bank of Kenya Limited –vs- Ndungu Njau [1997] eKLR while addressing matter review observed that:-'A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.'

10. The question then becomes, can the failure to address the issue of costs constitute a ground for review? To answer this question, I am persuaded by the case of Matigari General Merchants Ltd & Another –vs- Nelly Wairimu Muthoni & Another;Rose Wamuyu Wandaka (Interested Party) [2021]eKLR, cited by the applicant, in which the court held;'Section 27 of the Civil Procedure Act mandates the court to expressly address its mind to the issue of costs and where the court decides not to follow the general rule, the court is required to give its reasons for not so doing. Where a court of law fails to address its mind to a legal requirement that may constitute a ground for review as opposed to where the court addresses its mind to the same and makes a decision thereon'

11. Having found that an omission as to the pronouncement of costs forms a ground of appeal, I turn to the question of who is entitled to costs. Section 27 of the Civil Procedure Act provides;27 '(1)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 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.'

12. Similarly, in the case ofSupermarine Handling Services Ltd –vs- Kenya Revenue Authority, Civil Appeal No 85 of 2006, the Court of Appeal 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. Thus, where a trial court has exercised its discretion on costs, an appellate court should not interfere unless the discretion has been exercised unjudicially or on wrong principles. Where it gives no reason for its decision the appellate court will interfere if it is satisfied that the order is wrong. It will also interfere where the reasons are given if it considers that those reasons do not constitute 'good reason' within the meaning of the rule. In the instant case the learned judge gave no reasons whatsoever for his decision to deprive the successful plaintiff of its costs and yet it was not shown that the defendant had been guilty of some misconduct which led to litigation. In the court’s view the learned judge’s order was wrong and for the foregoing reasons, the plaintiff’s appeal succeeds as to the award of interest and costs on the principal sum awarded.'

13. In the instant case, the applicant won the case and was entitled to an award of costs of the suit. Upon going through the proceedings, I find that the learned judge did not address the issue of costs and neither did she give any reason(s) as to why the applicant, whose case was successful, was not entitled to costs. I therefore find that the failure to address the issue of costs was an omission, hence a god ground for review. It is trite that costs of any action, cause or other matter or issue shall follow the event.

14. The upshot of the foregoing is that the application dated November 8, 2021 is merited and the judgment delivered on October 15, 2021 be and is hereby reviewed so as to include an order that:-c.'That the costs of the suit be awarded to the plaintiff.'

15. Each party to bear their own costs of the application.

It is hereby so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 22ND DAY OF JULY, 2022. DO CHEPKWONYJUDGEIn the presence of:Mr Muhizi holding brief for Mr Lutta, the applicantNo appearance for defendantCourt Assistant - Sakina