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ELCDismissedNot stated in judgment· [2017] KEELC 2847 (KLR)

Caleb Miheso Ijami & another v Joseph Ndetswa Mbira & another [2017] KEELC 2847 (KLR)

High Court of Kenya
23 May 2017
SMS. MUKUNYA
488 words in judgment
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The bottom line

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Kenya's High Court confirmed costs can be taxed even while a suit-dismissal is being challenged, and appeals against taxation rarely succeed without clear proof of error.

What this practically means

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Executive summary

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This was a first appeal to the High Court at Bungoma (S. Mukunya, J) against the ruling of S.M. Shitubi (CM) dated 20.3.2013, which had been erroneously pleaded as a ruling of C. Kendagor Ag. SRM. The underlying suit had been dismissed on 9/9/2009 by H.I. Ongu'ndi (CM) under Order XVI rule 2 for want of prosecution. The respondent filed a bill of costs on 29/6/2010; taxation proceeded despite the appellants' objection and a pending application to set aside the dismissal, and the bill was taxed at Kshs.57,880. The appellant raised five grounds, contending that the magistrate erred in taxing costs while a set-aside application was pending, and in denying the appellants their day in court and natural justice. The High Court held that upon dismissal of the suit, the defendant was entitled to draw a bill of costs; costs follow the event under section 27 of the Civil Procedure Act and are discretionary. The Chief Magistrate's discretion was not shown to be erroneous, capricious or prejudicial in a manner not compensable by money, particularly if the set-aside application were to succeed. The court declined to interfere with the exercise of discretion and dismissed the appeal with costs on 23 May 2017.

Key legal issues

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01

Whether costs could be taxed notwithstanding a pending application to set aside dismissal of the suit

Holding

The dismissal of the plaintiff's suit entitled the defendant to draw a bill of costs; the pending application did not invalidate the taxation, and any prejudice would be compensable in money if the set-aside application later succeeded.

Reasoning

The court held that upon dismissal of the suit for want of prosecution, the defendant was within his rights to draw a bill of costs. Costs are discretionary and the Chief Magistrate lawfully exercised that discretion. Any prejudice from the taxation would be remediable by money if the set-aside application succeeded, so no basis for interference was established.

p. 2
02

Whether the appellate court should disturb the taxing officer's discretion

Holding

The appeal failed because no mistake, error of law, capricious exercise of discretion or uncompensable prejudice was demonstrated.

Reasoning

The discretion exercised by the Chief Magistrate in dismissing the objection and taxing the bill as drawn was not shown to be erroneous or capricious. Since no prejudice incapable of monetary compensation was proved, the appellate court would not interfere and the appeal was dismissed with costs.

p. 2

Legal principles established

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  • Costs follow the event unless the court specifically orders otherwise
  • An appellate court will not interfere with the exercise of discretion absent mistake, error or proof of capriciousness

Court orders

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  1. 1.The appeal is dismissed with costs
On appeal from
Chief Magistrate's Court (Bungoma)
Not stated
Jurisdiction invoked
First appeal against a taxing officer's ruling (not expressly stated; appeal against ruling of 20.3.2013)

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, "Caleb Miheso Ijami & another v Joseph Ndetswa Mbira & another [2017] KEELC 2847 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2847/eng@2017-05-23

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