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Court of AppealAllowedCivil Appeal No. 130 of 2012· [2014] KECA 767 (KLR)

Margaret Rwamba (Suing as legal representative of the estate of Moffat Kariuki Nyanga) v Mugambi Muketha & another [2014] KECA 767 (KLR)

Court of Appeal
22 January 2014
AVAlnashir VisramMartha Karambu KoomeMartha KoomeJOJ. Otieno-Odek
2,332 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a winning litigant is entitled to court costs, and a judge can fix a missed costs order through review, not just appeal.

What this practically means

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Executive summary

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This was a second-stage dispute arising from a fatal road accident suit in which the appellant, suing as the widow and legal representative of the deceased, obtained judgment in 2009 from the High Court (Emukule, J.) awarding damages apportioned 30%:70% between the respondents, with an order that each party bear its own costs. The trial judge grounded the denial of costs on the absence of evidence of service of a demand notice. After the decretal sum had been paid, the respondents successfully applied to correct an arithmetical error and set aside a taxing master's award, while the appellant's own application for review of the costs order was rejected by Kasango, J. on the basis that an error of law should be corrected on appeal, not by review. The appellant appealed to the Court of Appeal, heard ex parte after service on the respondents. Allowing the appeal, the Court identified two issues: entitlement to costs, and the proper avenue for correcting the costs order. It applied the Mbogo v Shah test for interfering with judicial discretion and held that costs follow the event under the proviso to Section 27(1) of the Civil Procedure Act, so the reason given for denying a wholly successful plaintiff costs was unreasonable. It further held that the failure to award costs was an error apparent on the face of the record, reviewable under Section 80 and Order 45, and that the judge below misdirected herself in holding review was unavailable. The Court set aside the ruling of 21st July 2011, allowed the appellant's review application, and awarded her costs of the suit and of the appeal, apportioned 30%:70% against the respondents. As a binding Court of Appeal decision, it confirms that review under Section 80 is not barred merely because an appeal was also available where no appeal has been preferred.

Key legal issues

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01

Whether the appellant, whose claim was wholly successful, was entitled to costs of the suit

Holding

Yes. Under the proviso to Section 27(1) of the Civil Procedure Act, costs follow the event unless the court for good reason otherwise orders. The trial judge's reason (no evidence of demand notice) was not a reasonable ground to deny a successful plaintiff costs.

Reasoning

The court exercised its appellate function over the costs discretion. It adopted the Mbogo v Shah test, asking whether the judge misdirected herself or misapprehended the law. Finding that the reason given by the trial judge for denying costs to a wholly successful plaintiff was unreasonable, it concluded the discretion was improperly exercised and the appellant was entitled to costs.

p. 3
02

Whether the denial of costs was an error apparent on the face of the record reviewable under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules

Holding

Yes. Given Section 27(1), the failure to award costs to the successful plaintiff was an error apparent on the face of the record, and the High Court had power on review to correct it; a party may seek review even where appeal is available if no appeal has been preferred.

Reasoning

The court set out the limited scope of review under Section 80 and Order 45: discovery of new and important matter, error apparent on the face of the record, or other sufficient reason. Relying on Muyodi v ICDC, it distinguished erroneous decisions from errors apparent on the face of the record, and held that because Section 27(1) required costs to follow the event, the denial of costs was a clear error reviewable by the court that made it.

p. 4

Legal principles established

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  • Where a plaintiff wholly succeeds in a claim, costs should follow the event under the proviso to Section 27(1) of the Civil Procedure Act, and a failure to award such costs may amount to an error apparent on the face of the record reviewable under Section 80 and Order 45.
  • A court retains power under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules to review an order on costs where the error is apparent on the face of the record; review is not excluded merely because an appeal was also available.

Court orders

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  1. 1.The appeal is allowed with costs to the appellant
  2. 2.The High Court's ruling dated 21st July, 2011 is set aside
  3. 3.The appellant's application dated 22nd July, 2010 is allowed
  4. 4.The appellant is awarded both costs of the suit at the trial court and of this appeal, apportioned at the ratio of 30%:70% against the 1st and 2nd respondents respectively

Authorities

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Legislation

  • Law Reform ActChapter 32, Laws of Kenya
  • Fatal Accidents ActChapter 26, Laws of Kenya
  • Civil Procedure ActSection 27(1) including proviso
  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45
  • Constitution of KenyaArticles 10, 2(b), 159(2)(a)(b)(d)

Cases cited (3)

  • Mbogo & Another -vs- Shah
    (1968) E.A. 93
  • Muyodi -vs- Industrial & Commercial Development Corporation & Another
    E.A.L.R (2006) 1 EA 243
  • Nyamogo & Nyamogo -vs- Kogo
    (2001) EA 174
On appeal from
High Court of Kenya at Meru
H.C.C.C No. 93 of 2004
Jurisdiction invoked
First appeal to the Court of Appeal under the Civil Procedure Act from a ruling of the High Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Margaret Rwamba (Suing as legal representative of the estate of Moffat Kariuki Nyanga) v Mugambi Muketha & another [2014] KECA 767 (KLR)", Case Analysis (2014). Civil Appeal No. 130 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/767/eng@2014-01-22

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