https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12463

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **CIVIL SUIT NO. 18 OF 2020** **WILFRED NYAUNDI KONOSI.............………… PLAINTIFF** **VERSUS** **MAJID MOHAMED ADAM.............…………..….. DEFENDANT** **AND** **JUDICIAL SERVICE COMMISSION.............…THIRD PARTY** # RULING 1. The matter before the Court is the Plaintiff's Preliminary Objection dated 4th December, 2025 challenging the competency of the Third Party's Party and Party Bill of Costs dated 28th May, 2025. The objection is premised on the contention that although the judgment delivered on 27th March 2025 by Hon. H.I Ongudi L.J dismissed the Plaintiff's suit with costs, it did not expressly award costs to the Third Party against the Plaintiff. Consequently, the Plaintiff contends that the Third Party has no legal basis upon which to tax its Bill of Costs against him. 2. The Third Party opposes the objection and submits that the judgment dismissed the Plaintiff's suit with costs without qualification. It argues that having successfully defended the proceedings after being joined through a Third-Party Notice and there being no order excluding it from the award of costs, it is entitled to recover its costs from the unsuccessful Plaintiff. 3. I have considered the Preliminary Objection, the rival submissions, the authorities cited by the parties herein and the judgment delivered on 27th March 2025. **Analysis and Determination** 1. The issue falling for determination is whether the Third Party is entitled to tax its Party and Party Bill of costs against the Plaintiff. 2. The law relating to costs is well settled. **Section 27(1) of the Civil Procedure Act. 2010** provides as follows; “... costs are in the discretion of the court or judge, but such costs shall follow the event unless the court or judge shall, for good reason, otherwise order”. 1. In the case of **Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai Estate & 4 Others [2014] eKLR**, the Supreme Court held that; ***“Although the award of costs remains discretionary, the general rule is that costs follow the event and a successful litigant ought to be awarded costs unless the court, for good reason, directs otherwise. ……where a court departs from the general rule, it must assign reasons for doing so.”*** 1. The Supreme Court reiterated the same principle in **Kenya Revenue Authority vs Export Trading Company Limited [2022] KESC**, observing that the purpose of an award of costs is to compensate the successful party for the expenses incurred in litigation and not to punish the unsuccessful party. The Court reaffirmed that any departure from the general rule must be founded upon sound judicial reasons. 2. Similarly, in **Party of Independent Candidate of Kenya v Mutula Kilonzo & 2 Others [2013] eKLR**, the Court of Appeal observed that while the award of costs is discretionary, such discretion must be exercised judicially and not capriciously. 3. The starting point therefore is the judgment sought to be enforced. The dispositive part of the judgment delivered on 27th March 2025 states; **"For the above reasons, I find that the Plaintiff has failed to establish his case on a balance of probabilities and the same is hereby dismissed with costs."** 1. The judgment has neither been appealed against, reviewed nor set aside. It therefore remains the valid and binding determination of the Court. 2. The Plaintiff submits that because the judgment does not expressly provide that "the Plaintiff shall pay the Third Party's costs", the Third Party cannot maintain a Bill of Costs against him. Reliance is placed on **Kenya Meat Commission v Jackson & Hill & Others (1958) EA 719**, where the Court directed that the Defendant bear the Third Party's costs. 3. I have carefully considered that authority. In my respectful view, the decision is distinguishable from the present case. In **Kenya Meat Commission (supra)**, the Court exercised its discretion upon the peculiar facts before it after considering the nature and outcome of the third-party proceedings. In fact, the issues raised in the third-party proceedings did not require to be decided as the third party did not appear at the trial of issues between the Plaintiff and defendant therein. No account of the third-party proceedings was made by that defendant. The decision does not establish a general principle that a Third Party is only entitled to costs where the judgment expressly directs that the Plaintiff shall bear such costs. 4. The circumstances obtaining herein are materially different. 5. The record herein demonstrates that following service of the Third-Party Notice, the Third Party entered appearance, filed its Defence to the Third-Party Notice, participated fully in the proceedings, cross-examined witnesses, filed written submissions and remained a party to the proceedings until judgment was delivered. Ultimately, the Plaintiff's claim was dismissed in its entirety. 6. The Plaintiff's principal argument is that he never sued the Third Party and therefore cannot be condemned to pay its costs. While that argument is not without some attraction, it overlooks the legal effect of the judgment ultimately rendered by the Court. 7. The learned Judge did not limit the award of costs to the Defendant. Neither did the Court reserve the issue of the Third Party's costs nor direct that those costs would be borne by the Defendant. Had the learned Judge intended to exclude the Third Party from the benefit of the order on costs or allocate liability differently, nothing would have been easier than to expressly state so. Instead, the Court made an unqualified order dismissing the Plaintiff's suit with costs. 8. In the absence of any qualification, this Court cannot read into the judgment words that the trial Court did not employ. To do so would amount to varying or qualifying a judgment which has neither been appealed against nor reviewed. 9. It is equally important to bear in mind the role of the taxing officer. A taxing officer derives jurisdiction from the decree of the Court and is bound to give effect to it. The taxing officer cannot sit on review and/or appeal over the judgment, rewrite the decree or import qualifications that are not contained therein. As was stated in the case of **Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd & Another [1972] EA 162**, the taxation process proceeds upon the judgment and decree of the Court and is intended to give effect thereto. 10. The Plaintiff's grievance is, in essence, directed at the scope of the judgment delivered on 27th March 2025. Such grievance could only properly be addressed through review or appeal. It cannot be determined indirectly through taxation proceedings. 11. The Court is therefore satisfied that the Third Party, having been lawfully joined to the proceedings, actively participated in the trial and successfully defended the claim culminating in the dismissal of the Plaintiff's suit, became a successful party within the meaning of Section 27 of the Civil Procedure Act. In the absence of any express order excluding it from the benefit of the award of costs, the general order dismissing the suit with costs enures to its benefit. 12. This conclusion is consistent with the principle enunciated by the Supreme Court in **Jasbir Singh Rai** that costs ordinarily follow the event unless the Court expressly orders otherwise. 13. Accordingly, I find no merit in the Preliminary Objection. 14. The Preliminary Objection dated 4th December 2025 is hereby dismissed. Each party to bear their own costs **Dated signed, and delivered at Nakuru this 30th day of July, 2026** **J. K. SERGON** **JUDGE** **In the presence of:** **Jamleck/Rutoh C/A** **Miss Onyango holding brief for Mong;ina for 3rd Party** **Ndubi for the Plaintiff**