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Court of AppealOtherCivil Appeal 308 of 2006· [2007] KECA 294 (KLR)

Jone Brooks Consultants Ltd v Co-operative Bank of Kenya [2007] KECA 294 (KLR)

Court of Appeal of Kenya
22 June 2007
Philip Kiptoo TunoiP.K. TunoiEGE.M. GithinjiJOJ.W. Onyango Otieno
678 words in judgment
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The bottom line

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Withdrawing an appeal in Kenya doesn't spare you from paying the other side's legal costs — the Court of Appeal ordered full costs even after an uncontested withdrawal.

What this practically means

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Executive summary

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This short Court of Appeal decision at Kisumu concerned the withdrawal of Civil Appeal No. 308 of 2006, an appeal by Jone Brooks Consultants Ltd against Co-operative Bank of Kenya arising from High Court miscellaneous application No. 263 of 2005 (Warsame, J, dated 9th November 2006). When the appeal was first heard before a differently constituted bench on 21st March 2007, the Court raised, suo moto, the question whether a limited liability company could lawfully carry on the business of a licensed auctioneer under the Auctioneers Act. At a mention on 20th June 2007, the appellant's counsel applied to withdraw the appeal, resisting any order for costs on three grounds: the fault lay with the licensing officer who had licensed the company; the fatal point was raised by the Court suo moto rather than by the respondent; and the respondent had raised the point in the superior court, lost, and did not appeal. The respondent did not oppose withdrawal but submitted that costs should follow the event. The Court allowed the withdrawal and marked the appeal as withdrawn. On costs, it held that whether an appeal fails on facts or law, and whether the point was raised suo moto or by a party, was immaterial: costs follow the event as a guideline on the exercise of the court's discretion, and the respondent, having prepared the record on facts and law, was entitled to costs. The appellant was ordered to pay the respondent's costs of the appeal.

Key legal issues

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01

Withdrawal of appeal

Holding

An unopposed application to withdraw an appeal, based on proper grounds, is allowed as prayed and the appeal is marked as withdrawn.

Reasoning

The Court noted the appellant's counsel sought to withdraw following the Court's suo moto concern that a limited liability company may not lawfully carry on business as a licensed auctioneer under the Auctioneers Act. The respondent did not oppose the withdrawal, and the Court found the application properly grounded, allowing it and marking the appeal as withdrawn.

p. 2
02

Costs upon withdrawal of an appeal

Holding

Costs follow the event even where the appeal is withdrawn because of a point raised suo moto by the Court, since the respondent had to prepare on facts and law regardless.

Reasoning

The appellant argued it should not pay costs because the fatal issue was raised by the Court suo moto, was the licensing officer's fault, and had been rejected by the superior court without appeal. The Court held that whether an appeal fails on facts, law, or both, and whether the points were raised suo moto or by a party, was immaterial; the costs-follow-the-event principle stood.

p. 2

Legal principles established

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  • The principle that costs follow the event is a guideline on the exercise of the court's discretion in awarding costs, and applies irrespective of whether the point causing a withdrawal was raised by the court suo moto or by a party.

Court orders

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  1. 1.Civil Appeal No. 308 of 2006 filed on 24th November 2006 is marked as withdrawn
  2. 2.The appellant shall pay the costs of the appeal to the respondent

Authorities

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Legislation

  • Auctioneers ActAct No. 5 of 1996 (generally)
On appeal from
High Court of Kenya at Kisumu
H.C.MISC. C. APPL. NO. 263 OF 2005
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over the High Court (not specifically stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Jone Brooks Consultants Ltd v Co-operative Bank of Kenya [2007] KECA 294 (KLR)", Case Analysis (2007). Civil Appeal 308 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/294/eng@2007-06-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.