[2014] KEHC 356 (KLR)
The court determined that the confusion regarding the party entitled to costs arose from the misdescription of parties in the pleadings and orders. The applicant, Gideon Gilbert Ochiel, was the party whose application was dismissed for want of prosecution. Jane Akumu Migwambo, having succeeded at the tribunal and...
Source-derived case information.
- Citation
- [2014] KEHC 356 (KLR)
- Parties
- Applicant: Republic; Respondent: Rongo Divisional Land Dispute Tribunal; Respondent: Rongo Resident Magistrate’s Court; Applicant: Gideon Gilbert Ochiel; Respondent: Jane Akumu Migwambo
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 120 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Clarification of Prior Order and Party Designation
- Outcome
- Clarification granted; costs awarded to Jane Akumu Migwambo as the 2nd interested party.
- Legal Topics
- Party Misdescription, Costs Award, Land Dispute Tribunal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Rongo Divisional Land Dispute Tribunal
Respondent
Rongo Resident Magistrate’s Court
Respondent
Gideon Gilbert Ochiel
Applicant
Jane Akumu Migwambo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Clarification of Prior Order and Party Designation
Legal Issues
- 1 Who was the proper beneficiary of the court order made on 13th April, 2011 regarding costs.
- 2 Whether the misdescription of parties affected the taxation of costs and clarity of the court's orders.
Ratio Decidendi
The court determined that the confusion regarding the party entitled to costs arose from the misdescription of parties in the pleadings and orders. The applicant, Gideon Gilbert Ochiel, was the party whose application was dismissed for want of prosecution. Jane Akumu Migwambo, having succeeded at the tribunal and being the respondent to the dismissed application, was the proper party entitled to costs. The court clarified that the 2nd interested party, Jane Akumu Migwambo, is the beneficiary of the costs order, and the Rongo Land Disputes Tribunal is properly described as the 1st interested party. The court reaffirmed that costs follow the event, and the event was in favour of Jane Akumu...
Court Disposition
Clarification granted; costs awarded to Jane Akumu Migwambo as the 2nd interested party.
Orders
- It is declared that Jane Akumu Migwambo is the proper beneficiary of the costs order made on 13th April, 2011.
- The Rongo Land Disputes Tribunal is properly described as the 1st interested party.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
MISCELLANEOUS CIVIL APPLICATION NO. 120 OF 2005
REPUBLIC……………………………………………………………………APPLICANT
VERSUS
RONGO DIVISIONAL LAND DISPUTE TRIBUNAL……………..1ST RESPONDENT
RONGO RESIDENT MAGISTRATE’S COURT……………….....2ND RESPONDENT
AND
GIDEON GILBERT OCHIEL………………………………1ST INTERESTED PARTY
JANE AKUMU MIGWAMBO……………………………….2ND INTERESTED PARTY
RULING
This was an oral application made by Mr. Ochwangi, Counsel for the 2nd interested party in this matter to clear the ambiguity that has resulted in the interpretation of the court order made on 13th April, 2011 by Justice Makhandia in dismissing the notice of motion filed in court on 26th July, 2005.
The object of this ruling is to clarify who, of the interested parties herein, was the one in whose favour the court order of 13th April, 2011 was made. It is a short ruling.
This second (2nd) interested party in this matter was Jane Akumu Migwambo. The applicant in this matter was Gideon Gilbert Ochiel. However, the said applicant is misdescribed as the 1st interested party. He is not.
To appreciate this distinction we look at the genesis of this matter. This matter arose from the Land Dispute Tribunal, under the Land Dispute Tribunals Act, 1990 (No. 18 of 1990), in the office of the Land Migori District, Rongo Division.
Before that tribunal, the Plaintiff was Jane Akumu Migwambo and the Defendant was Gideon Ochiel. In the other words, the Claimant was Jane Akumu Migwambo and the Objector was Gedion Gilbert Ochiel.
It was Jane’s case that her deceased husband sold Gedion Gilbert Ochiel six acres before he died. But Gedon Gilbert Ochiel was claiming that he was sold 21 acres, he accordingly fenced off 21 acres of the deceased’s land. The real issues were: was it six (6) acres or twenty one acres (21) acres?
The tribunal found for Jane Akumu Migwambo. In the other words she succeeded in her claim at the tribunal level . The loser was, in the other words, Gedion Gilbert Ochiel. If there was one to appeal, it was Gedion Gilbert Ochiel, not Jane Akumu Migwambo. Gideon gilbert Ochiel appealed in a miscellaneous application No. 120 of 2005.
However, in the said miscellaneous application No. 120 of 2005, dated 26th July, the confusion set in when the lawyer for the applicant Kerario marwa & Company, Advocates now described GIDEON GILBERT OCHIEL as the 1st INTERESTED party and JANE AKUMU MIGWAMBO as the 2nd INTERSTED party. Gideon Gilbert Ochiel was simply an applicant.
On 13th April, 2011, Justice Makhandia dismissed the notice of motion filed in court on 26th July, 2005 with costs to the interested parties for want of prosecution on the part of the applicant. Now, who was the applicant here? Mr. Gideon Gilbert Ochiel was the applicant. So it was his application that was then dismissed. Who was the true interested party between Gideon Gilbert Ochiel and Jane Akumu Migwambo? It was Jane Akumu Migwambo who was the interested party.
Were there two interested parties. The Rongo division Land Dispute Tribunal, was in my view, the 1st interested party. And the second interested party was therefore Jane Akumu Migwambo.
Therefore, because this confusion persisted as a result of the way the parties to the pleadings were described. The applicant, Gideon Gilbert Ochiel, the applicant was variously described as both the applicant and also as the 1st interested party. This misdescription of the parties set off the confusion which, also, influenced the taxing master in taxing the bill of costs.
The court finds that the costs follow the event of winning, and the event in this case was in favour of the 2nd interested party, that is, Jane Akumu Migwambo, not Gideon Gilbert Ochiel. And the Rongo Land Disputes Tribunal is, in my view, the 1st interested party as above described.
Orders accordingly.
Dated and delivered at Kisii this 17th day of October, 2014.
C.B. NAGILLAH,
JUDGE.
In the presence:-
No representation for the applicant
No representation for the 1st respondent
No representation for the 2nd respondent
No representation for the 1st interested party
Mr. Ochwangi for the 2nd interested party
Mongare Court Clerk.