David Mwangi Muiruri v Ali Bakari Mohammed
The bottom line
#Kenya's Court of Appeal confirmed that winning a case does not automatically guarantee you get your legal costs paid by the other side.
What this practically means
#Executive summary
#Key legal issues
#Exercise of discretion on costs under Section 27 of the Civil Procedure Act
The Court of Appeal declined to interfere with the High Court's denial of costs to the appellant, holding the Judge's discretion was properly exercised because the respondent had been erroneously deprived of his day in court
Section 27 gives the court full discretion over costs, with costs following the event only absent good reason. An appellate court interferes only where the discretion was exercised unjudicially, on wrong principles, or where the judge misdirected himself on law or facts, took into account irrelevant considerations, or was plainly wrong. The Judge gave a sound reason: the respondent was drawn into the litigation by averments in proceedings to which he was not party and was 'erroneously' denied a hearing, so condemning him to pay costs would be oppressive and a travesty of justice.
Res judicata where the earlier suit was struck out
The Court agreed with the High Court that the second suit was not res judicata since the first suit had been struck out and not heard and determined on merit
Although the issue was not formally before the Court as the appeal had been condensed to costs, the Court endorsed the Judge's finding that no res judicata arises where the earlier suit was struck out rather than heard and determined on merit, and that the respondent therefore ought not to have been condemned to pay costs to the appellant.
Legal principles established
#- Costs are discretionary and an appellate court will not interfere with an award of costs unless the discretion was exercised unjudicially, on wrong principles, or the order is plainly wrong
- A suit that has been struck out and not heard and determined on merit cannot found a plea of res judicata against a subsequent suit
Court orders
#- 1.The appeal is dismissed with costs to the respondent
- On appeal from
- High Court of Kenya at Malindi
- H.C.C.A. No. 54 of 2013
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Civil Procedure Act (appeal against the exercise of discretion on costs)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Mwangi Muiruri v Ali Bakari Mohammed", Case Analysis (2018). Civil Appeal No. 106 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/13/eng@2018-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.