[2022] KEHC 12529 (KLR)

Secretary, School Committee Nyenyesi Primary School v Musebe (Civil Appeal 64 of 2018) [2022] KEHC 12529 (KLR) (17 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12529 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal 64 of 2018

PJO Otieno, J

June 17, 2022

Between

Secretary, School Committee Nyenyesi Primary School

Appellant

and

Abdalla Weyimi Musebe

Respondent

Judgment

1. For trial before the lower Court was a claim by the Respondent for the recovery of the sum of Kshs 8,000/= on account of goods sold and delivered by the Respondent to the Appellant. After hearing both parties and in a reserved Judgment the trial Court found that the Respondent had failed to link the Appellant with the contract of supply and delivery of the suit bricks and dismissed the suit but without any orders as to costs.

2. It is the failure to award the costs of the suit to the Appellants which has provoked this appeal by which the Appellants contend, in the four grounds of appeal, that the trial Court fell in error in failing to award costs to the successful party by failure to apply the applicable principle.

3. The only issue for determination in this appeal is therefore whether in failing to award costs to the successful party the trial Court appreciated the principles on award of costs under Section 27 of the Civil Procedure Act.That provision stipulates: -“27. (1)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 is clear under the proviso to the section that while the award of costs is at the discretion of the Court, the same should abide the outcome of the matter so that the successful party ought to be awarded costs unless there be good reasons, ascertained by the Court and there is an obligation upon the Court to record such reasons in its decision, to make order on costs which do not align with the outcome

5. The stipulation accords with the law that for judicial discretion to remain judicial, when properly exercised, must be based on reason. Where no reason is put forth the decision ceases to be judicial discretion and take the face of caprice or just a whim. In Party of Independent Candidates of Kenya versus Mutula Kilonzo & 2 others, HC EP No. 6 of 2013, the Court had this to say on the issue of costs:-“It is clear from the authorities that the fundamental principle underlying the award of costs is two-fold. In the first place, the award of costs is a matter in which the trial judge is given discretion …. But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could come to the conclusion arrived at. In the second place the general rule that costs should be awarded to the successful party, is a rule which should not be departed from without the demonstration of good grounds for doing so.”

6. In the decision challenged here there is no debate that no reason at all was advanced by the trial for his decision not to award costs or make any order in that regard. To that extent he erred. The Court of Appeal in James Koskei Chirchir versus Chairman Board of Governors Eldoret Polytechnic [2011] eKLR (Civil Appeal No. 211 of 2005), held inter alia, that:“Notwithstanding the provisions of section 27, above costs is generally a matter within the discretion of the Court. The Court did not, however, explain why it denied the appellant his costs before the trial Court. In absence of any explanation in that regard we think that the learned Judge of the Superior Court erred in denying the appellant the costs of the suit before the trial Court”.

7. In this appeal, there is no reason advanced by the trial court for failure to award the costs to successful party. However, as an appellate court, the mandate is to reevaluate and reappraise the evidence in whole and anew and come to own conclusions.

8. The dispute was about delivery of building bricks which were admittedly received and used by the school at the instant of a benefactor who unfortunately was never sued. To this court it would be unjust for the respondent to lose the property delivered to the school and be condemned pay it the school the costs of litigation. For that reason, I would disallow the appeal and order that each part shall bear own costs.

DATED, SIGNED AND DELIVERED AT KAKAMEGA, ONLINE, THIS 17TH DAY OF JUNE 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:No appearance for the AppellantRespondent present in personCourt Assistant: Kulubi