James Murage Gichangi v Fredrick Munene Muthii [2022] KEELC 1578 (KLR)

The court noted that appeals from the High Court lie as of right under Section 66 of the Civil Procedure Act, so no leave was in fact needed, and questioned why the Applicant sought it. Having failed to file within 30 days, the Applicant had to justify the delay under the proviso to Section 79G. Citing Paul Musili Wambua v Attorney General, the court enumerated the factors: length of delay, reason for delay, chances of success and prejudice to the respondent. Since no reason for the delay was proffered, the discretion could not be exercised in the Applicant's favour and the first prayer failed.

The court revisited the judgment of 4th October 2019, which found the suit failed for want of jurisdiction and struck it out with costs, while striking out the defence and counterclaim with no order as to costs. Relying on Western College of Arts and Applied Science v Oranga and Kiriinya Mukiira v Middle East Bank Kenya Limited, the court held that a dismissal or striking-out confers no relief and requires no party to do or refrain from doing anything; it is not capable of execution or enforcement and cannot be stayed. The second prayer therefore also failed.

Applying the principle in Party of Independent Candidate of Kenya v Mutula Kilonzo, the court held that the award of costs is discretionary but judicial, and that the general rule is that costs go to the successful party and should not be departed from without good grounds. No grounds for departure existed, so the Applicant, having failed on both prayers, was ordered to pay the costs of the application.