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Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Appeal 80 of 2021· [2022] KECA 1386 (KLR)

Stephen Gitau Mwangi v Gilanis Supermarket Limited

Court of Appeal
15 December 2022
FOF OchiengLAL AchodeWKW Korir
1,720 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a supermarket must pay the costs of an abandoned appeal filed by its own lawyer, even without instructions.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nakuru (Ochieng, Achode and Korir, JJA) on a notice of motion dated December 7, 2021 by the applicant, seeking withdrawal of the respondent's notice of appeal dated October 1, 2021, filed against the judgment of Wasilwa J of the Employment and Labour Relations Court delivered on September 23, 2021, in which the applicant was awarded Kshs 198,000, costs and interest. The applicant argued that the respondent never served the notice, never bespeaking proceedings, and never instituted an appeal within 60 days under rule 82(1) of the Court of Appeal Rules, rendering the notice time-barred. The respondent opposed, through its head of legal and compliance, asserting that the notice was lodged by its then advocates without instructions, that it had fully settled the decretal amount, and that the notice should be withdrawn with each party bearing its own costs. Both parties concurred that the notice should be deemed withdrawn, leaving only costs for determination. Applying the Supreme Court's decision in Jasbir Singh Rai on costs following the event as a discretionary principle, and Tana & Athi Rivers Development Authority on mistakes of counsel, the court held that although the notice may have been filed without the respondent's instructions, it was filed by the respondent's advocate then on record, and it would be unfair to burden the applicant with costs of a still-born appeal he did not initiate. The motion was allowed, the notice of appeal deemed withdrawn, and the respondent ordered to bear the costs of the application.

Key legal issues

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01

Whether the notice of appeal should be deemed withdrawn

Holding

Both parties concurred that the notice should be deemed withdrawn; the court so ordered without belabouring the point.

Reasoning

The applicant sought withdrawal on the basis that no appeal was instituted within 60 days under rule 82(1). The respondent, asserting the notice was filed without its instructions and that the decretal sum was fully settled, also sought withdrawal. With both parties in agreement, the court found no issue to resolve on withdrawal and deemed the notice withdrawn.

p. 2
02

Who should bear the costs of the withdrawn notice of appeal

Holding

The respondent bears the costs because the notice was filed by its advocate then on record, and it would be unfair to burden the applicant who did not initiate the still-born appeal.

Reasoning

Applying Jasbir Singh Rai on costs following the event as a discretionary, not invariable, rule and Tana & Athi Rivers Development Authority on mistakes of counsel, the court found it unlikely the respondent would settle the decree and then appeal; the event flowed from the previous counsel, not the respondent, but the notice was nonetheless filed on the respondent's behalf by its advocate on record.

Legal principles established

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  • Costs do not automatically follow the event; the award of costs is a matter of judicial discretion exercised on a case-to-case basis.
  • A notice of appeal filed by an advocate then on record binds the client for costs purposes even if allegedly filed without instructions; an innocent party should not be burdened with costs of a still-born appeal.

Court orders

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  1. 1.The notice of motion dated December 7, 2021 is allowed
  2. 2.The notice of appeal dated October 1, 2021 and filed on October 5, 2021 is deemed as withdrawn
  3. 3.The respondent shall bear the cost of this application

Authorities

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Legislation

  • Appellate Jurisdiction Actsection 3(1) & (2)
  • Appellate Jurisdiction Actsection 3A
  • Appellate Jurisdiction Actsection 3B
  • Court of Appeal Rulesrule 1(2)
  • Court of Appeal Rulesrule 82(1)
  • Court of Appeal Rulesrule 82(2)
  • Court of Appeal Rulesrule 83

Cases cited (6)

  • Mae Properties Limited v Joseph Kibe & Another
    [2017] eKLR

    Appeal should be instituted within 60 days of lodging the notice of appeal under rule 82(1), failing which the notice is deemed withdrawn

  • Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others
    [2014] eKLR

    Costs follow the event but the ultimate factor is the judiciously exercised discretion of the court

  • National Bank of Kenya v Muriu Kamau & Another
    [2009]
  • Winfred N Konosi t/a Konosi & Co Advocates v Flamco Limited
    [2017] eKLR
  • Christopher Muriithi Ngugu v Eliud Ndugu Evans
    [2016] eKLR

    An innocent party whose counsel acted without instructions should not be punished with costs

  • Tana & Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 Others
    [2015] eKLR

    Courts readily excuse a mistake of counsel but the exercise of such discretion is not automatic; counsel owes duties to the court and the other side

On appeal from
Employment and Labour Relations Court
Nakuru ELRC No. 356 of 2017
Jurisdiction invoked
Sections 3(1) & (2), 3A & 3B of the Appellate Jurisdiction Act; rules 1(2), 82(1) & (2) and 83 of the Court of Appeal Rules

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, "Stephen Gitau Mwangi v Gilanis Supermarket Limited", Case Analysis (2022). Civil Appeal 80 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1386/eng@2022-12-15

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