[2011] KEHC 3750 (KLR)
Although the appellant was successful in the appeal, the court found that the appellant was the party who initiated the proceedings before the tribunal and moved the Chief Magistrate's Court for adoption of the award, despite the tribunal lacking jurisdiction. The respondent only appealed as a matter of right. The...
Source-derived case information.
- Citation
- [2011] KEHC 3750 (KLR)
- Parties
- Appellant: Sikuku Stella Mason; Respondent: Ben Kumbuti Wasilwa
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 66 of 2000
- Procedural Posture
- Civil Appeal / Ruling on Application for Review of Costs Order
- Outcome
- Application for review of costs order allowed; each party to bear their own costs of the appeal.
- Judges
- FN Muchemi
- Legal Topics
- Costs of Appeal, Review of Judgment, Jurisdiction of Tribunals, Land Disputes, Adoption of Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Sikuku Stella Mason
Appellant
Ben Kumbuti Wasilwa
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review of Costs Order
Legal Issues
- 1 Whether the costs of the appeal should be borne by the appellant, the respondent, or both parties.
- 2 Whether there was an error apparent on the face of the record regarding the order for costs in the judgment.
- 3 Whether the appellant's actions in moving the tribunal and the Chief Magistrate's Court affected the allocation of costs.
Ratio Decidendi
Although the appellant was successful in the appeal, the court found that the appellant was the party who initiated the proceedings before the tribunal and moved the Chief Magistrate's Court for adoption of the award, despite the tribunal lacking jurisdiction. The respondent only appealed as a matter of right. The court recognized an error apparent on the face of the record in its previous order condemning the respondent to pay costs. In view of the appellant's role in initiating the proceedings and moving the court, the court exercised its discretion to correct the costs order, holding that each party should bear their own costs of the appeal.
Court Disposition
Application for review of costs order allowed; each party to bear their own costs of the appeal.
Orders
- The error apparent on the face of the record is corrected in the judgment.
- Each party to meet their own costs of this appeal.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT BUNGOMA
CIVIL APPEAL NO.66 OF 2000
(Appeal from original BGM CM CC Misc. No.79 of 1999)
SIKUKU STELLA MASON...............................................................................APPELLANT
~VRS~
BEN KUMBUTI WASILWA...........................................................................RESPONDENT
RULING
This is a ruling on the Respondent’s application dated 11/09/2010 seeking for review of the decree specifically on the issue of payment of costs of the appeal. It also seeks for orders that the Appellant be condemned to pay the costs of the appeal.
The facts leading to this application are that the Appellant Sikuku Stella Masoni successfully appealed against the orders of the Chief Magistrate, Bungoma adopting the award of the Western Province Appeals Board. The Respondent was condemned to pay costs of the suit on grounds that he is the one who applied for adoption of the award. In his affidavit in support of the application, the Respondent explains that it is the Appellant who sued him in the Lugari Land Disputes Tribunal. Being aggrieved by the judgment of the tribunal, he appealed as a matter of right to the Appeals Board. It is therefore the Appellant who ought to have been ordered to pay the costs of the appeal. The date for hearing of the adoption application was fixed by the counsel for the Appellant.
In his replying affidavit sworn on 25/10/2010, the Appellant argues that the Resident Magistrate Court where he filed the suit no.204 of 1999 lacked jurisdiction leading him to go to the tribunal for the orders. It is the Appellant’s submission that the Respondent ought to pay the costs of the appeal.
In its judgment, this court condemned the Respondent to pay the costs of the appeal on grounds that he is the one who took the application for adoption to court. The Appellant was successful in this appeal. Costs follow the event. The Appellant is entitled to costs in the event of a successful appeal except in which the court elects to exercise its discretion. It has been brought to my notice that it is the Appellant who went to the tribunal to arbitrate on title when the tribunal lacked jurisdiction. The tribunal proceedings show that Wilson W. Masoni was the Plaintiff. The tribunal gave orders to sub-divide the respondent’s land into two portions. The respondent appealed against the tribunal’s decision before the Provincial Appeals Board who confirmed the decision of the tribunal. The correct position is that it is the Appellant who moved the court to adopt the decision of the appeals board. This was contrary to the section of the Land Disputes Tribunal Act. The decision of this court in the appeal is clear on that point. Although the Appellant has won the appeal, he too should bear part of the costs of the appeal in view of the fact that he moved the Chief Magistrate Court to grant the orders dated 10th August, 2000.
The application must therefore succeed. The error apparent on the face of the record is hereby corrected in the judgment for the last line to read:
“Each party to meet their own costs of this appeal.”
F. N. MUCHEMI
JUDGE
Ruling dated and delivered this 9th day of March, 2011 in the presence of Mr. Ocharo for the Respondent and Appellant in person.
F. N. MUCHEMI
JUDGE