[2015] KEHC 602 (KLR)
The court found that the appellants were successful litigants on appeal, having obtained judgment on liability apportioned at 50%. Although the appellate judgment was silent on costs, the court held that, pursuant to Section 27 of the Civil Procedure Act, the appellants were entitled to costs as costs follow the...
Source-derived case information.
- Citation
- [2015] KEHC 602 (KLR)
- Parties
- Appellant: Wanjiru Ng'ang'a & Patrick Wanyoike Ng'ang'a (suing on their own behalf and as the administrators of the estates of the late Michael Ng'ang'a Wanyoike); Respondent: Paul Kinuthia Mungai
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 418 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Motion for Costs After Partial Success on Appeal
- Outcome
- Appellants awarded costs of the suit, subject to 50% liability apportionment.
- Judges
- JK Sergon
- Legal Topics
- Costs Award, Apportionment of Liability, Slip Rule Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wanjiru Ng'ang'a & Patrick Wanyoike Ng'ang'a (suing on their own behalf and as the administrators of the estates of the late Michael Ng'ang'a Wanyoike)
Appellant
Paul Kinuthia Mungai
Respondent
Procedural Posture
Civil Appeal / Ruling on Motion for Costs After Partial Success on Appeal
Legal Issues
- 1 Whether the appellants, as partially successful litigants, are entitled to costs of the suit.
- 2 Whether the court should apply the slip rule to clarify the issue of costs not addressed in the appellate judgment.
Ratio Decidendi
The court found that the appellants were successful litigants on appeal, having obtained judgment on liability apportioned at 50%. Although the appellate judgment was silent on costs, the court held that, pursuant to Section 27 of the Civil Procedure Act, the appellants were entitled to costs as costs follow the event. The court further invoked the slip rule under Sections 99 and 100 of the Civil Procedure Act to correct the omission regarding costs in the appellate judgment, awarding the appellants costs of the suit based on the amount already subjected to the 50% liability apportionment.
Court Disposition
Appellants awarded costs of the suit, subject to 50% liability apportionment.
Orders
- The appellants are awarded costs of the suit based on the amount already subjected to the 50% liability.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 418 OF 2011
WANJIRU NG’ANG’A & PATRICK WANYOIKE NG’ANG’A (SUING ON THEIR OWN BEHALF AND AS THE ADMINISTRATORS OFTHE ESTATES OF THE LATEMICHAEL NG’ANG’A WANYOIKE)... APPELLANTS
VERSUS
PAUL KINUTHIA MUNGAI .................................................................................................................. RESPONDENT
RULING
The Appellant herein, took out the motion dated 9th August 2015 in which she sought for this court’s direction as to the costs of the suit. The motion is supported by the affidavit of James Ndungu, learned advocate for the Appellant. When served, the Respondent filed the replying affidavit of Mutembei Marete, learned advocate to oppose the motion.
When the motion came up for interpartes hearing, learned advocates appearing in the matter urged this court to consider the material placed before it and come up with a decision. I have considered the grounds set out on the face of the motion plus the affidavits filed in support and against the application. The Appellant has urged this court to award her costs of the suit since she was a successful litigant. It pointed out that the trial court had proposed to give costs of the suit to the plaintiff (Appellant) if she was successful. The Respondent is of the view that this court had made an order directing each party to meet its own costs hence the motion is misplaced and lacks merit.
The history behind this motion is short and straight forward.The Appellants herein, in their capacity as the legal representative of the estate of Michael Ng’ang’a Wanyoike, deceased filed a compensatory suit for the fatal injuries the deceased suffered as a result of a road traffic accident involving the Respondent’s motor vehicle. The suit was heard before the Resident Magistrate’s court, Gatundu. The Resident Magistrate’s court dismissed the suit prompting the Appellants to prefer this appeal. The learned trial Resident Magistrate gave the quantum he would have awarded had the suit succeeded as enjoined by law to do so. Costs was also awarded to the Appellants.
On appeal the Appellants appeal partially succeeded in that they got judgement on liability apportioned at 50%. This court was silent on the question of costs. There is no doubt that the Appellants are successful litigants save that they will shoulder 50% liability. Pursuant to the provisions of Section 27 of the Civil Procedure Act, they are entitled to costs since costs follow the event.
Pursuant to the provisions of Sections 99 and 100 of the Civil Procedure Act, I apply the slip rule and award the Appellants costs of the suit based on the amount already subjected to the 50% liability.
Dated, Signed and Delivered in open court this 11th day of December, 2015.
J. K. SERGON
JUDGE
In the presence of:
………………………………………. for the Appellants
……………………………………….for the Respondent