Timothy Busienei & 2 others v Mechai International Limited [2017] KECA 190 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that judges can deny legal costs to winners when the losing side is a charity dependent on donor funding.
What this practically means
#Executive summary
#Key legal issues
#Interference with a trial court's discretion on costs
The Court of Appeal is slow to interfere with a judge's exercise of discretion on costs unless the judge misdirected himself or was clearly wrong, resulting in injustice
The Court applied Mbogo v Shah and Supermarine Handling Services Ltd v Kenya Revenue Authority, restating that appellate interference with discretionary decisions requires demonstration of misdirection, wrong principles, or a clearly wrong exercise of discretion resulting in injustice. Costs are governed by the discretion in Section 27 of the Civil Procedure Act, which defaults to costs following the event but permits departure for good reason.
Duty to give reasons for a costs order
A trial judge's reasons for declining to award costs need not be confined to the formal order; it is sufficient if the reasons are apparent from the body of the judgment
The trial judge's failure to award costs to the successful appellants was explained by her finding that the respondent was a charitable, not-for-profit organization dependent on donor funding. Because those reasons were evident from the judgment as a whole, the complaint that no reasons were given failed; the discretion was exercised judiciously.
Rights of residents objecting to a change of user of land
Residents have a constitutional right to protect their property and its peaceful enjoyment, and objections lodged to challenge a change of user are not wrongful or illegal
The High Court had found, and the appeal record shows, that the appellants, as adjacent residents of Elgon View Estate, were entitled to lodge objections to the change of user of the suit property. That finding was not disturbed on appeal; the appeal was confined to the costs order.
Legal principles established
#- Costs follow the event unless the court, for good reason, orders otherwise; the award of costs is a discretionary exercise under Section 27 of the Civil Procedure Act
- An appellate court will not interfere with a trial court's discretion on costs unless it was exercised unjudicially or on wrong principles; where no reason is given, the appellate court may interfere if satisfied the order is wrong
- Where a trial judge's reasons for a costs order are apparent from the body of the judgment, the discretion has been exercised judiciously even if no separate reasons are stated on costs
Court orders
#- 1.Appeal dismissed
- 2.Each party to bear their own costs in the appeal
- On appeal from
- High Court of Kenya at Eldoret
- HCCC No. 54 of 2008
- Jurisdiction invoked
- First appellate jurisdiction under the Constitution and the Civil Procedure Act (appeal as of right from the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ian Edwards v Bytes Technology Group Kenya Ltd [2018] KECA 428 (KLR)[2018] KECA 428 (KLR)27 Jul 2018
- Tom Mboya Odege v Hon. Edick Peter Omondi Anyanga & 2 others[2018] KECA 611 (KLR)11 May 2018
Cite this brief
#Cite this brief
Caselaw, "Timothy Busienei & 2 others v Mechai International Limited [2017] KECA 190 (KLR)", Case Analysis (2017). Civil Appeal No. 38 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/190/eng@2017-11-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.