Mark Ademba Okumu v Daniel Ojijo Odhiambo [2022] KEELC 2053 (KLR)
The bottom line
#A Narok court set aside a defective certificate of costs, confirming winning parties must be paid costs for both their defence and counterclaim.
What this practically means
#Executive summary
#Key legal issues
#Whether the decree of 16th May, 2019 accorded with the judgment
The decree was in agreement with the judgment and was not set aside
Comparing the orders in the judgment of 29th November 2018 with those extracted in the decree of 16th May 2019, the court found the orders mirrored each other: dismissal of the plaintiff's suit with costs, judgment on the counterclaim for Kshs. 600,000 with interest, and declaration of refund of the purchase price less the 10% default penalty. The decree therefore substantially conformed to the judgment.
Whether the certificate of costs of 26th February, 2019 accorded with the judgment
The certificate of costs was defective because it assessed only the counterclaim costs and omitted costs of the plaint and interest from the date of judgment
The taxing officer assessed only the counterclaim costs (Kshs. 109,955) without providing for costs of the plaint or interest from the date of judgment, both awarded in the judgment. Relying on the principle that a counterclaim is a suit in its own right, the court held the certificate did not accord with the judgment and decree and had to be set aside.
Whether costs should have been assessed at the High Court rate
Costs were correctly assessed at the subordinate court rate since the suit was transferred to and heard by the Chief Magistrate's Court
Although the suit was initially filed in the ELC established under Article 162(b) of the Constitution, it was transferred to the Chief Magistrate's Court where it was heard and disposed of. Costs followed the court that issued them, so the subordinate court rate applied. The Appellant's contention that the High Court rate applied was found untenable.
Legal principles established
#- A decree must agree with the judgment, contain the prescribed particulars and clearly specify the relief granted, including the costs payable.
- A counterclaim is a suit in its own right, distinct from the plaintiff's suit, and costs of the plaint and of the counterclaim must each be separately assessed.
- On first appeal, the court must reconsider and re-evaluate the evidence and draw its own conclusions while allowing for the trial court's advantage of seeing and hearing witnesses.
Court orders
#- 1.The certificate of costs dated 26th February, 2019 is set aside
- 2.The lower court's file is remitted to the taxing officer for fresh assessment of the Appellant's costs of the suit and costs of the counterclaim as awarded in the judgment dated 29th November, 2018, and a fresh certificate of costs be issued enumerating full costs on both the plaint and counterclaim payable to the Appellant
- 3.The Appellant shall deduct from the sums in his custody due to the Respondent the assessed costs in addition to the judgment award of Kshs. 600,000/- with interest thereon from the date of judgment before remitting the net balance to the Respondent
- 4.The Appellant shall have the costs of this appeal
- On appeal from
- Chief Magistrate's Court at Narok
- Narok CMELC No. 76 of 2018
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrate's Court (Environment and Land Court proceedings instituted under Article 162(b) of the Constitution and transferred to the subordinate court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mark Ademba Okumu v Daniel Ojijo Odhiambo [2022] KEELC 2053 (KLR)", Case Analysis (2022). Narok ELCA (Civil Appeal) arising from Narok CMELC No. 76 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2053/eng@2022-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.