[2015] KEHC 959 (KLR)
The court held that since the issue of costs was not addressed in the appellate judgment, it was not functus officio and retained jurisdiction to determine the matter. The omission was an accidental slip envisaged under Sections 99 and 100 of the Civil Procedure Act, empowering the court to correct such errors....
Source-derived case information.
- Citation
- [2015] KEHC 959 (KLR)
- Parties
- Appellant: Telcom Kenya Limited; Respondent: David Murithi Kaiguri alias David Muriithi Kaigori
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 541 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Costs After Appeal Judgment
- Outcome
- Application for costs allowed; Respondent awarded costs of the appeal.
- Judges
- JK Sergon
- Legal Topics
- Costs Follow Event, Jurisdiction on Costs, Terminal Dues Award, Employment Status Declaration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Telcom Kenya Limited
Appellant
David Murithi Kaiguri alias David Muriithi Kaigori
Respondent
Procedural Posture
Civil Appeal / Ruling on Costs After Appeal Judgment
Legal Issues
- 1 Whether the High Court has jurisdiction to determine the issue of costs after judgment on appeal.
- 2 Whether the successful party in the appeal is entitled to costs under Section 27 of the Civil Procedure Act.
Ratio Decidendi
The court held that since the issue of costs was not addressed in the appellate judgment, it was not functus officio and retained jurisdiction to determine the matter. The omission was an accidental slip envisaged under Sections 99 and 100 of the Civil Procedure Act, empowering the court to correct such errors. Applying Section 27 of the Civil Procedure Act, the court found no reason to depart from the general rule that costs follow the event. As the Respondent was the successful party in the appeal, he was entitled to costs of the appeal.
Court Disposition
Application for costs allowed; Respondent awarded costs of the appeal.
Orders
- The Respondent is awarded costs of the appeal.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 541 OF 2005
TELCOM KENYA LIMITED...................................APPELLANT
VERSUS
DAVID MURITHI KAIGURI................................RESPONDENT
Alias DAVID MURIITHI KAIGORI
RULING
David Murithi Kaiguri, alias David Muriithi Kaigori, the Respondent herein filed a suit before the Principal Magistrate’s court, Kerugoya against Telkom Kenya Ltd, the Appellant herein where of he sought for a declaratory judgement to the effect that he had been employed by the Appellant on permanent terms. He also sought for payment of 240,587/30 as terminal dues. The suit was heard and on 14. 7.2005 the Respondent was declared to have been employed by the Appellant on permanent terms. The Respondent was also awarded ksh.139,594/= as terminal dues.
The Appellant was dissatisfied hence he preferred this appeal
Hon. Mr. Justice Onyancha heard the appeal and on18. 5.2015, the honourable judge dismissed the appeal and reviewed upwards the award on terminal dues to kshs.243,838. 30. There was no mention of costs.
Learned counsels appearing in this matter beseeched this court to make a decision on costs. Mr. Mwangi learned advocate for the Appellant argued that this court has no jurisdiction to entertain the application because it is tantamount to sitting on appeal in its own cause. He was of the view that the Respondent should be awarded costs being a successful party under Section 27 of the Civil Procedure Act. Mr. Abubakar did not address his mind to the question of jurisdiction.
There is no doubt that the parties had asked for costs both before the trial court and on appeal. It would also appear that Justice Onyancha did not consider at all the question of costs. Having not expressed himself over the issue, it cannot be argued that this court will be sitting on appeal when called upon to decide the issue. In my view I am entitled to infer that the issue on costs escaped the mind of the Honourable judge. Under Sections 99 and 100 of the Civil Procedure Act, the law envisaged such lapses or slips to occur hence it gave the court the discretion to step in and correct such errors.
Having come to the conclusion that I have jurisdiction to hear and determine the question on costs. Let me determine the question of costs on its merits. It is very clear that under Section 27 of the Civil Procedure Act that costs follows the event. There is no reason why the Respondent being the successful party, should not be given costs. I award the Respondent costs of the appeal.
Dated, Signed and delivered in open court this 13th day of November, 2015.
J. K. SERGON
JUDGE
In the presence of:
………………………………………. for the Appellant
……………………………………….for the Respondent