Albert Fred Ekirapa v Nyongesa Sirari & 5 others [2020] KEELC 2307 (KLR)
The bottom line
#A Kenyan court cannot be asked to order mortuary cost payments after a case has been decided—such claims must be raised during the case itself.
What this practically means
#Executive summary
#Key legal issues
#Whether the court is functus officio and cannot entertain the mortuary costs claim
The court is functus officio; the claim for mortuary bills was not pleaded and cannot be introduced after final determination
The suit was finally determined and the decree executed; the defendants did not plead mortuary expenses in their defence and counter-claim, and no undertaking as to damages was ordered when the injunction was granted. Party and party costs under Section 27 cover only costs of prosecuting or defending a suit. Introducing an unpleaded substantial claim, akin to special damages, via interlocutory application after final judgment would reopen a concluded case.
Whether mortuary bill costs can be classified as party and party costs
They cannot; such costs must be pleaded and proved
Party and party costs are an award requiring one party to pay the other's legal costs of the proceeding. Costs under Section 27 of the Civil Procedure Act are the costs of prosecuting or defending a suit. A mortuary bill for preservation of a body is not such a cost; it is a substantive claim that ought to have been pleaded and proved for determination.
Whether the Grace Komo case supports the application
It is distinguishable because that order was made during the pendency of the suit pursuant to a specific application for security of mortuary costs
In Grace Komo the mortuary costs order was made before the case was finalized and pursuant to a specific application by the defendants during the pendency of the suit, not generally as part of an award of party and party costs. It therefore does not assist the applicants, who seek such an order after final judgment without any prior application or pleading.
Legal principles established
#- Costs under Section 27 of the Civil Procedure Act cover only the costs of prosecuting or defending a suit, not ancillary claims like mortuary bills
- A substantial claim such as special damages for mortuary expenses must be pleaded and proved and cannot be introduced by interlocutory application after judgment
Court orders
#- 1.The amended application dated 5/11/2019 is misconceived, without merit and is dismissed
- 2.Parties to meet their respective costs of the application
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 63(e), 26 and 27 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Albert Fred Ekirapa v Nyongesa Sirari & 5 others [2020] KEELC 2307 (KLR)", Case Analysis (2020). Amended Notice of Motion dated 5th November 2019 (arising from suit over L.R. No. NORTH TESO/ANGURAI/213). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2307/eng@2020-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.