[2022] KEHC 15529 (KLR)

Republic v Officer in Charge of Station, Karen Police Station & another; Isoe (Exparte) (Miscellaneous Application 9 of 2020) [2022] KEHC 15529 (KLR) (Judicial Review) (17 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15529 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Miscellaneous Application 9 of 2020

AK Ndung'u, J

November 17, 2022

Between

Republic

Applicant

and

Officer in Charge of Station, Karen Police Station

1st Respondent

Attorney General

2nd Respondent

and

Jared Isoe

Exparte

Ruling

1. This ruling resolves the application dated April 7, 2022 in which Jared Isoe (the applicant) sought orders (sic):4. That the honourable court be pleased to review, rectify and/or amend the orders issued and delivered on the June 11, 2021 with respect to the ex-parte/applicant's judicial review application dated on the January 27, 2020. 5.That in the disposition of the court made in paragraph 4(iii) of the said judgment be amended to read that "the respondents shall bear its own costs as well as the cost of the ex parte applicant's notice of motion dated on the January 27, 2020. ”6. Any other relief which this honourable court may deem fit and expedient.7. That the costs of this application be provided for.

2. The application is premised on grounds that:i.That the honourable court vests the general power to correct or amend their records so as to provide finality.ii.That this honourable court may at any time correct clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission either of its own motion or on the application of any of the parties.iii.That it is the correction which shall give effect to the intention of the court at the time when judgment was given.iv.That to correct the error/omission will not involve a real difference of opinion or require an argument and deliberation.v.That the intended correction does not go to the substance of the judgment or order.vi.That when the order was issued and/or made, some mistake or error apparent on the face of the record occurred; which creates ambiguity.

3. In a nutshell, the applicants’ case is that at paragraph 4 (iii) of its judgment in this matter the court indicated that the respondents were to bear its own costs of the notice of motion dated January 27, 2022. A perusal of the record and a copy of the judgment show that counsel is making reference to paragraph 19 (iii) of the judgment.

4. It is urged that the court retains the general power to amend or correct its records and the sought amendment shall not involve a real difference of opinion or require argument and deliberation.

5. The respondents filed no response to the application.

6. I have considered the application before court. Whereas the court at paragraph 19(iii) was clear on who was to bear the costs of the respondents, the court was silent on the party who was to bear the costs of the applicant.

7. Granted, the applicant was the successful party in the matter. Costs follow the event unless for good reasons the court states otherwise. Section 27 of the 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 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. ‘’

4. It follows then that even where the court is silent on an order for costs, costs shall follow the event and it is the successful party who shall have the costs unless the court for good reason states otherwise.

5. Thus, whereas as pleaded in the application before the court the court appears to have omitted providing for costs for the applicant, section 27 of the Civil Procedure Act cures the omission as the costs ought to follow the event.

6. Having been moved as herein, and noting that the court did not pronounce itself on the costs for the applicant and even though section 27 would readily come to the aid of the applicant, the prayers sought in this application are merited as the resultant effect would be to bring clarity and certainty on the question of costs.

7. I accordingly allow the notice of motion dated April 7, 2022 and make the following orders:1. Paragraph 19(iii) of the judgment herein be and is hereby amended to read “the respondent shall bear their own costs and the costs for the ex parteapplicant in respect of the notice of motion dated January 27, 2020. ”2. Each party is to bear the costs of this application noting that the same was necessitated by an omission on the part of the court.

DATED, SIGNED AND DELIVERED THIS 17THDAY OF NOVEMBER, 2022. ……………………..………………A.K. NDUNG’UJUDGE