[2002] KEHC 266 (KLR)
The court held that although the office of District Magistrate I Gichugu was abolished, the case had terminated and the parties had participated in the proceedings. The court exercised its discretion to award costs to the 2nd and 3rd respondents, limited to instruction and attendance fees, up to the time the case...
Source-derived case information.
- Citation
- [2002] KEHC 266 (KLR)
- Parties
- Applicant: Richard Gichobi Kamundo; Respondent: District Magistrate I Gichugu [B.G. Maina]; Respondent: Gacheche Wa Miano Adv.; Respondent: Edwin Mwai Kiruai
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 2000 of ??
- Procedural Posture
- Miscellaneous Application / Ruling on Costs After Abatement of Judicial Review Application
- Outcome
- Costs awarded to 2nd and 3rd respondents limited to instruction and attendance fees up to the time of case termination.
- Legal Topics
- Judicial Review, Costs Award, Abatement of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Gichobi Kamundo
Applicant
District Magistrate I Gichugu [B.G. Maina]
Respondent
Gacheche Wa Miano Adv.
Respondent
Edwin Mwai Kiruai
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Costs After Abatement of Judicial Review Application
Legal Issues
- 1 Whether costs should be awarded to the 2nd and 3rd respondents after the abatement of the judicial review application due to the retirement of the District Magistrate.
- 2 Whether the abolition of the office of District Magistrate I Gichugu resulted in abatement of the suit and affected entitlement to costs.
Ratio Decidendi
The court held that although the office of District Magistrate I Gichugu was abolished, the case had terminated and the parties had participated in the proceedings. The court exercised its discretion to award costs to the 2nd and 3rd respondents, limited to instruction and attendance fees, up to the time the case terminated by virtue of the abandonment of office. The rationale was that the party whose alleged misdeed was not proved is entitled to costs, and the abolition of the office did not negate the respondents' entitlement to costs incurred up to the point of termination.
Court Disposition
Costs awarded to 2nd and 3rd respondents limited to instruction and attendance fees up to the time of case termination.
Orders
- Costs to be paid to 2nd and 3rd respondents for instruction and attendance fees only, up to the time the case terminated.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC. APP.1052 OF 2000
RICHARD GICHOBI KAMUNDO ………………APPLICANT
V E R S U S
THE DISTRICT MAGISTRATE I
- GICHUGU ……………………………1ST RESPONDENT
GACHECHE WA MIANO ADV. ………..2ND RESPONDENT
EDWIN MWAI KIRUAI ………………….3RD RESPONDENT
R U L I N G
On 27th September 2000 the applicant Richard Gichobi Kamundo brought Judicial Review application asking for orders of certiorari and prohibition to be directed against District Magistrate I Gichugu [B.G. Maina] to prohibit him from granting any further irregular orders on a Bill of costs presented before him. It was the case that the District Magistrate acted illegally by allowing one Gacheche Wa Miano to enter the suit and file a Bill of Costs.
While this was going on, it appears the District Magistrate I was retired and the Review application abated. Now Mr. Kopere has applied for costs because 1st, 2nd and 3rd respondents were joined in the suit. District Magistrate I Gichugu was retired. So 2nd and 3rd respondents should be paid costs.
Mr. Wambugu opposes awarding of costs to 2nd and 3rd respondents because office of District Magistrate I Gichugu ceased to exist by operation of law so the case did not abate.
I appreciate arguments of counsel in this matter, but like May L.J. said in LIPKIN GORMAN vs KARNALE LTD [1989] IWLR 1390 said:-
“In making order for costs a court exercises a discretion, doing justice to all the circumstances of the case but bearing in mind the underlying principle that winner whoever may be described as winner is entitled to costs”.
Here who is the winner? perhaps there is none? but the case has terminated and it was a case where parties went to court. The winner here to me is that whose alleged misdeed is not proved and he is entitled to costs. The abolition of the office of District Magistrate I Gichugu operated only after a certain time so the costs must be payable to the point when the case terminated by virtue of abandonment of office.
I think the costs be paid up to the time but these would be instructions fees and attendance fees only.
Order accordingly.
Read to Mr. Mutande for applicant on 13/9/2002
A. I. HAYANGA
J U D G E
13/9/2002