[2020] KEHC 4081 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

Coram: D. K. Kemei – J

CIVIL APPEAL CASE NO. 54 OF 2017

PENTAGON INTERIRO LIMITED.....APPELLANT/RESPONDENT

VERSUS

BIRAN MWANGANGI NZOMO...1ST RESPONDENT/APPLICNAT

MATRU ENTERPRISES LIMITED.....................2ND RESPONDENT

RULING

1. The 1st Respondent filed a Notice of Motion dated 11/07/2019 seeking for two reliefs namely: that he be awarded costs of this appeal and of the present application and that the said costs do attract interest at the rate of 14% per annum.

2. The Application is supported by grounds stated on the face of the application as well as by the affidavit of Kibunja Nyambura sworn on even date. The Applicant’s case is that the Appellant filed and served upon them a notice of withdrawal of Appeal dated 12/03/2019 and that it should follow that costs of the appeal should be awarded to the Applicant. It is further the Applicant’s case that such costs should attract interest at the rate of 14% p.a.

3. The Appellant and the 2nd Respondent neither filed replying affidavits nor grounds of opposition to the said application.

4. Parties agreed to canvass the application vide written submissions. It is only the Applicant’s submissions that are on record. Learned counsel for the Applicant in his submissions reiterated what had been averred in the affidavit in support of the application save only that the costs of the earlier application dated 28/04/2017 filed by the Appellant be awarded to the Applicant as well.

5. I have considered the Applicant’s application and the brief submissions of his learned counsel. The record reveals that the Appellant duly filed its Memorandum of Appeal dated 28/04/2017 contemporaneously with an application seeking orders of stay of execution of the lower court judgement pending determination of the appeal. The said application was duly considered by Nyamweya – J and who granted the orders of stay as sought on condition that the Appellant secures the decretal sum with a bank guarantee in the sum of Kshs.1 million and that the costs of the said application were to follows the appeal.

6. Directions on the disposal of the appeal were yet to be taken by the parties. While the said directions were being awaited, the Appellant herein filed a Notice of Withdrawal of appeal dated 12/03/2019 filed on 5/4/2019 and that from the way it had been drawn the same was to be served upon counsel for the 1st Respondent/Applicant. Upon being served with the said Notice of Withdrawal, learned counsel for the 1st Respondent/Applicant duly filed the preset application. Even though the said notice of withdrawal of the appeal was not endorsed by the Deputy Registrar on the record, I have no doubt in my mind that the filing of the same was a clear intention by the Appellant to withdraw the appeal. The Appellant’s conduct in filing and serving the notice of withdrawal left no doubt about its express intentions. The lack of endorsement is further saved by the maxim of equity namely “Equity treats as done that which ought to be done.”

7. It is noted that the Appellant dispute being served with the application by the 1st Respondent/Applicant as confirmed by the affidavit of service sworn on 5/12/2019 and filed on 18/12/2019 has failed to file a response to the said application. Hence the application dated 11/07/2019 and filed on 20/11/2019 is unopposed.

8. The 1stRespondent/Applicant duly participated in the proceedings. They filed grounds of opposition to the Appellant’s application dated 28/04/2017 and also filed submissions which culminated in the ruling by Nyamweya – J dated 31/10/2017. Upon being served with the notice of withdrawal of appeal, the Applicant filed the present application. It is therefore clear that the Applicant has incurred some expenses and is thus entitled to costs. By dint of Section 27 of the Civil Procedure Act I find that costs follow the event. The event here being the withdrawal of the appeal by the Appellant thereby leaving no doubt that the matter regarding the appeal herein has now come to an end and what is remaining is the closure of the file once the issues of costs have been thrashed.

9. The Applicant has also sought for interest on the costs. Section 27 of the Civil Procedure Act provides interest up to a maximum of 14% p.a. As the appellant has not opposed the application I have no reason to deny the Applicant’s request for costs on the interest to the tune of 14% p.a as the same is not excessive.

10. In the result I find merit in the Applicant’s application dated 11/07/2019. The same is allowed as prayed.

Orders accordingly.

Dated and delivered at Machakos this 28th day of July, 2020.

D. K. Kemei

Judge