[2020] KEHC 9822 (KLR)
The court found that its earlier ruling omitted to address the issue of costs, despite the general principle that costs follow the event and the suit having stood dismissed. The court held that the omission was an error that warranted review. Exercising its discretion under Section 27(1) of the Civil Procedure Act,...
Source-derived case information.
- Citation
- [2020] KEHC 9822 (KLR)
- Parties
- Plaintiff: Patriotic Guards Ltd; Defendant: Kenya Electricity Generating Co. Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1137 of 2006
- Procedural Posture
- Review Application / Ruling on Application for Review of Costs Order
- Outcome
- Application for review allowed. Plaintiff to bear costs of the suit.
- Judges
- BT Jaden
- Legal Topics
- Costs Award, Review of Ruling, Court Discretion on Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patriotic Guards Ltd
Plaintiff
Kenya Electricity Generating Co. Ltd
Defendant
Procedural Posture
Review Application / Ruling on Application for Review of Costs Order
Legal Issues
- 1 Whether the omission to determine costs in the court's earlier ruling warrants a review of the ruling.
- 2 Whether the defendant is entitled to costs following the dismissal of the suit.
Ratio Decidendi
The court found that its earlier ruling omitted to address the issue of costs, despite the general principle that costs follow the event and the suit having stood dismissed. The court held that the omission was an error that warranted review. Exercising its discretion under Section 27(1) of the Civil Procedure Act, the court determined that the suit ought to have been dismissed with costs to the defendant. The application for review was therefore merited and allowed, with the plaintiff ordered to bear the costs of the suit.
Court Disposition
Application for review allowed. Plaintiff to bear costs of the suit.
Orders
- The ruling of 16th October 2018 is reviewed to include an order that the plaintiff shall bear the costs of the suit.
- Application dated 27th August 2019 is allowed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL CASE NO. 1137 OF 2006
PATRIOTIC GUARDS LTD ................................................................PLAINTIFF
VERSUS
KENYA ELECTRICITY GENERATING CO. LTD.........................DEFENDANT
RULING
1. The application dated 27th August. 2019seeks orders that:
(a) That, this honourable court be pleased to order for Review of the court ruling delivered on 16th day of October,2018 on the omission of costs of the main suit.
(b) That subsequent to prayer (a); above this honourable court be pleased to order the Plaintiff/Respondent to bear costs of the suit.
(c) That costs be in the cause.
2. It is stated in the grounds and the affidavit in support of the application that the ruling the subject matter of the application omitted to determine who was to bear the costs of the suit. It is further averred that the Defendant incurred the costs of defending the suit herein which now stands dismissed in terms of the said ruling.
3. The application is opposed as per the grounds of objection herein dated 22nd November, 2019 and the replying affidavit sworn by Titus Kigen, the Plaintiff’s Managing Director on 22nd November, 2019. The replying affidavit does not address itself to the matters at hand. The grounds of objection are as follows:
1. The application is incompetent for failure to adhere to paragraph 11 (4) of the Advocates Remuneration Order as they did not object to the decision of the Taxing Officer within 14 days as the Applicants costs of their application dated 23rd May, 2017 was duly awarded.
2. Under 4th Edition (Re-issue 2010) Vol 10 paragraph 16. This court should not be bulldozed to award costs.
“The court has discretion as to whether costs are payable by one party to another the amount of those costs and when they are to be paid where costs are in the discretion of the court a party has no right to costs unless and until the court awards them to him AND THE COURT HAS AN ABSOLUTE AND UNFETTERED DISCRETION TO AWARD OR NOT TO AWARD THEM THIS DISCRETION MUST BE EXERCISED IN ACCORDANCE WITH REASON AND JUSTICE.
4. I have considered the application, the response to the same and submissions filed by the respective counsel for the parties.
5. Section 27 (1) Civil Procedure Act provides as follows:
“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 an 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...”
6. The ruling dated 16th October, 2018 gave the Plaintiff 120 days to fix the suit for hearing. In default the suit stood dismissed. Costs follow the event. However, the court has discretion to determine the question of facts. In the case at hand, there was an omission by the court to determine the question of costs. The suit ought to have stood dismissed with costs.
7. The application has merits and is allowed.
Date, signed and delivered at Nairobi this 18th day of June, 2020
B. THURANIRA JADEN
JUDGE