[2005] KEHC 2910 (KLR)
The court held that each of the two consolidated suits should attract its own instruction fee under the relevant schedule, rejecting the argument that only one fee should be allowed due to consolidation. The court further held that the suit containing the claim for lost years should be treated as the main suit. In...
Source-derived case information.
- Citation
- [2005] KEHC 2910 (KLR)
- Parties
- Plaintiff: Stephen Kigima Kabera; Defendant: Kigumo Maendeleo Farmers; Defendant: Gabriel Gakuru Mugo; Defendant: The Standard Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 4777 of 1990
- Procedural Posture
- Civil Case / Ruling on Costs After Consent Judgment and Dismissal of Claim for Lost Years
- Outcome
- Directions on costs given; parties to file bills for taxation in accordance with the court's directions.
- Judges
- CN Mugo
- Legal Topics
- Costs Follow Event, Consolidation of Suits, Instruction Fees, Counterclaim Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Kigima Kabera
Plaintiff
Kigumo Maendeleo Farmers
Defendant
Gabriel Gakuru Mugo
Defendant
The Standard Limited
Defendant
Procedural Posture
Civil Case / Ruling on Costs After Consent Judgment and Dismissal of Claim for Lost Years
Legal Issues
- 1 Whether each consolidated suit should attract its own instruction fee for costs purposes.
- 2 Whether the successful counterclaim should be treated as a separate suit for the purposes of taxation of costs.
- 3 Whether costs should follow the event or be apportioned equally due to the consent judgment and apportionment of liability.
Ratio Decidendi
The court held that each of the two consolidated suits should attract its own instruction fee under the relevant schedule, rejecting the argument that only one fee should be allowed due to consolidation. The court further held that the suit containing the claim for lost years should be treated as the main suit. In respect of the counterclaim, the court applied the principle that costs should be based on actual costs necessitated or accrued solely as a result of the counterclaim, and not on the amount awarded, since a counterclaim is not a suit commenced as stipulated in the relevant schedule. The court found no basis for an order that each party bears its own costs, noting that if this...
Court Disposition
Directions on costs given; parties to file bills for taxation in accordance with the court's directions.
Orders
- Each of the two suits shall attract its own instruction fees under the relevant schedule.
- The suit containing a claim for lost years is to be treated as the main suit.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
CIVIL CASE NO. 4777 OF 1990
STEPHEN KIGIMA KABERA……………………………. PLAINTIFF
VERSUS
KIGUMO MAENDELEO FARMERS……..…………1ST DEFENDANT
GABRIEL GAKURU MUGO……..…………………. 2ND DEFENDANT
CONSOLIDATED WITH
HIGH COURT CIVIL CASE NO. 4452 OF 1991
KIGUMO MAENDELEO FARMERS………….……….. PLAINTIFF
VERSUS
THE STANDARD LIMITED ………………..……….. 1ST DEFENDANT
STEPHEN KIGIMA KABERA………………………. 2ND DEFENDANT
RULING
The dispute herein relates to costs payable in circumstances where the parties in two related suits H.C.C.C. No.4777 of 1990 (Stephen Kigima Kabera –vs- Kigumo Maendeleo Farmers and Gabriel Gakuru Mugo) and H.C.C.C. No.4452 of 1991 (Kigumo Maendeleo Farmers –vs- The Standard Limited and Stephen Kigima Kabera) recorded a consent judgment on 26. 11. 02 as follows:
(a) Judgment for Stephen Kigima Kabera against Kigumo Maendeleo Farmers in the sum of Shs.162,647 inclusive of interest.
(b) Judgment for Kigumo Maendeleo Farmers against Stephen Kigima Kabera and the Standard Limited jointly and severally in the sum of Shs.78,063. 25 inclusive of interest.
(c) Judgment for the Standard Limited against Kigumo Maendeleo Farmers in the sum of Kshs.44,125/= inclusive of interest
(d) The issue of lost years to be determined by the court. liability for lost years (if any) to be apportioned as under:
(i) Kigumo Maendeleo Farmers to bear 50% liability
(ii) Stephen Kigima Kabera to bear 50% liability
(e) The issue of costs to be determined by the Court.
When the matter came up for hearing on the issue of lost years, the Claimant failed to attend Court and that part of claim was therefore dismissed with costs. The parties have failed to agree on the costs payable in respect of the suits and the successful counterclaim wherein the Standard Limited was awarded Kshs.44,125.
M/S Shapley Barret & Co., Counsel for the Defendants in H.C.C.C. No.4777 of 1990 and the Plaintiffs in H.C.C.C. No.4452 of 1991 have submitted that in assessing costs herein the Court should apply the principle that costs follow the event and find that separate fees be allowed for each of the two suits and that the fee for the successful counterclaim be based on the sum awarded.
M/S Hamilton, Harrison & Mathews, Counsel for the Plaintiff in H.C.C.C.4777 of 1990 and 2nd Defendant in H.C.C.C. No. 4452 of 1991 argue on the other hand that since liability was apportioned equally each party should bear its own costs; that since the suits were consolidated only one instruction fee should be entertained and that the successful counterclaim ought not to be treated as a suit for the purposes of the taxation.
Counsel for the 2nd Defendant in H.C.C.C. 4777 of 1991 did not file any submissions, opting instead to adopt those of M/S Hamilton Harrison & Mathews.
Having considered the submissions filed herein, the relevant legal principles and the authorities submitted by Counsel I give directions as follows:
1. Each of the two suits shall attract own instruction fees under the relevant schedule.
2. The suit containing a claim for lost years be treated as the main suit
3. Applying the principles in ABDUL AZIZ SULEMAN -vs- IGEMBE FARMERS CO-OPERATIVE SOCIETY LTD & ANOR, [1966] E.A. 352 apportionment in the second suit be at a lower percentage at the discretion of the Taxing Master of the Court.
4. On the authority of MEDWAY OIL AND STORAGE CO. LTD – vs- CONTINENTAL CONTRACTORS LIMITED [1928] A.C. 88,costs in the counterclaim shall be based on actual costs necessitated or accrued solely as a result of the counterclaim and not to be based on the amount awarded since the counterclaim is not a suit commenced as stipulated in Schedule VI I (a) or (b).
I see no basis for an order that each party bears its/his own costs. If that was the intention of the parties then the same ought to have formed part of the consent recorded herein on 26th November 2002.
Accordingly parties may proceed to file their respective Bills for taxation by the Taxing Master along the above directions for him to deal with the respective quantums in accordance with the principles laid down in JAMES ARTHUR –vs-NYERI ELECTRIC UNDERTAKING [1961] E.A. 492.
Dated and Delivered at Nairobi this 21st day of January 2005
M.G. Mugo
Judge
In the presence of:
Ms Mugaa present for Hamilton Harrison & Mathews Advocates for the Plaintiff
N/A for Shapely Barret & Company Advocates for the 1st Defendant
N/A for Archer & Wilcock Advocates for the 2nd Defendant