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ELCAllowedNot stated in judgment· [2018] KEELC 177 (KLR)

Telesia Kambua Kinyili v Ndangwa Kinyili Masila & 3 others [2018] KEELC 177 (KLR)

Environment and Land Court (High Court), Makueni
29 November 2018
MCMBOGO C.G
943 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled that an outsider sued alongside family members deserved costs the original judgment overlooked.

What this practically means

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Executive summary

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This is a ruling on a notice of motion filed by the 4th Defendant seeking review of a judgment delivered on 24th November 2017 in a land dispute between the Plaintiff and her mother and sisters (the 1st, 2nd and 3rd Defendants), in which the 4th Defendant was also a party. The application, brought under section 98 of the Civil Procedure Act and Orders 45 and 51 of the Civil Procedure Rules, sought an order that the 4th Defendant be awarded costs of the suit on the basis that he is not a member of the Plaintiff's family, was dragged into the suit without cause, and had to engage counsel, attend court for some ten years and bring witnesses. The Plaintiff opposed the application through grounds of opposition, arguing that costs had been addressed in the judgment, that the review threshold under Order 45 Rule 1 was not met, and that the court's discretion on costs under section 27 of the Civil Procedure Act had not been shown to have been exercised unfairly. In written submissions, the 4th Defendant's counsel relied on Cecilia Karuru Ngayo v Credit Reference Bureau Africa Ltd on the factors relevant to costs. The court, adopting Mativo J's statement of principle, held that the original judgment denied costs to the family defendants to promote harmony but failed to consider the position of the 4th Defendant, who was unrelated to the family - an error apparent on the face of the record. The judgment of 24th November 2017 was accordingly reviewed, and costs of the suit were awarded to the 4th Defendant. The application was allowed as prayed. The ruling was delivered at Makueni on 29th November 2018 by Mbogo C.G, Judge.

Key legal issues

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01

Whether an error apparent on the face of the record existed justifying review

Holding

Yes - the court failed to consider that the 4th Defendant is unrelated to his co-defendants and the Plaintiff when withholding costs.

Reasoning

The original judgment denied costs to the 1st, 2nd and 3rd Defendants to promote family harmony, since they were the Plaintiff's mother and siblings. The court did not address costs in respect of the 4th Defendant, who was not part of that family. This omission constituted an error on the face of the record within Order 45 Rule 1 of the Civil Procedure Rules, entitling the 4th Defendant to costs for the trouble of defending a suit into which he claimed he was dragged without cause.

p. 2
02

Applicable principles in awarding costs

Holding

The court adopted Mativo, J's factors including the parties' conduct, the subject of litigation, the circumstances leading to proceedings, and the need to promote reconciliation under Article 159(2)(c).

Reasoning

Counsel for the 4th Defendant cited Cecilia Karuru Ngayo v Credit Reference Bureau Africa Ltd, where the court enumerated factors for costs: conduct of parties, subject of litigation, circumstances of institution and termination of proceedings, and the relationship between the parties. The judge fully associated himself with that statement, treating it as the governing framework for the costs discretion in this suit involving family members and a third-party purchaser.

p. 2

Legal principles established

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  • In determining the issue of costs the court may consider factors beyond the conduct of the parties in the litigation itself, including the circumstances giving rise to the suit and the relationship between the parties.

Court orders

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  1. 1.The judgment dated 24th November 2017 is reviewed
  2. 2.An order for costs of the suit is made in favour of the 4th Defendant
  3. 3.The application is allowed as prayed

Authorities

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Legislation

  • Civil Procedure Actsection 98
  • Civil Procedure Actsection 27
  • Civil Procedure RulesOrder 51 Rules 1, 3, 4, 5 and 7
  • Civil Procedure RulesOrder 45 Rule 1
  • Constitution of KenyaArticle 159(2)(c)
  • Law of Succession ActNot specified

Cases cited (1)

  • Cecilia Karuru Ngayo V Credit Reference Bureau Africa Ltd
    [2016] eKLR
Jurisdiction invoked
Section 98 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction)

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, "Telesia Kambua Kinyili v Ndangwa Kinyili Masila & 3 others [2018] KEELC 177 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/177/eng@2018-11-29

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