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ELCPartially AllowedNarok ELCA (Civil Appeal) arising from Narok CMELC No. 76 of 2018· [2022] KEELC 2053 (KLR)

Mark Ademba Okumu v Daniel Ojijo Odhiambo [2022] KEELC 2053 (KLR)

Environment and Land Court of Kenya
25 January 2022
3,653 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~15 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a first appeal from the ruling of the Chief Magistrate's Court at Narok (Hon. G.N. Wakahiu) delivered on 3rd September 2019, dismissing the Appellant's application to review and set aside the decree dated 16th May 2019 and the certificate of costs dated 26th February 2019 issued pursuant to the judgment of 29th November 2018 in Narok CMELC No. 76 of 2018. The Appellant, who had successfully defended the Respondent's suit and prosecuted a counterclaim for Kshs. 600,000 with interest, complained that the certificate of costs omitted costs of the plaint and interest from the date of judgment, capturing only counterclaim costs of Kshs. 109,955. The court framed four issues and, applying the first appellate standard of re-evaluation from Selle v Associated Motor Boat Co., found that the decree of 16th May 2019 was substantially in agreement with the judgment and declined to set it aside. However, it found the certificate of costs defective because a counterclaim is a suit in its own right, and costs of the plaint and counterclaim should each have been assessed; the omission of costs of the plaint and interest had no basis. The court also rejected the contention that High Court rates applied, holding that the suit having been transferred to and heard by the subordinate court, costs were correctly assessed at the subordinate court rate. The appeal was allowed in part: the certificate of costs was set aside, the file remitted to the taxing officer for fresh assessment of both plaint and counterclaim costs, the Appellant permitted to deduct the assessed costs plus the judgment award from sums in his custody before remitting the balance, and the Appellant awarded the costs of the appeal.

Key legal issues

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01

Whether the decree of 16th May, 2019 accorded with the judgment

Holding

The decree was in agreement with the judgment and was not set aside

Reasoning

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.

p. 4
02

Whether the certificate of costs of 26th February, 2019 accorded with the judgment

Holding

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

Reasoning

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.

p. 4
03

Whether costs should have been assessed at the High Court rate

Holding

Costs were correctly assessed at the subordinate court rate since the suit was transferred to and heard by the Chief Magistrate's Court

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The certificate of costs dated 26th February, 2019 is set aside
  2. 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. 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. 4.The Appellant shall have the costs of this appeal

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 21 Rule 7
  • Constitution of Kenya, 2010Article 162(b)

Cases cited (10)

  • Selle & Another v Associated Motor Boat Co. Ltd. & Others
    (1968) EA 123
  • Abdul Hammed Saif v Ali Mohamed Sholan
    (1955), 22 E.A.C.A. 270
  • Kibona vs. Tanscan Timber Co. Ltd Mbeya HCCC No. 8 of 1999
    [1995-1998] 1 EA 121
  • Personal Representative of the Estate of Ernest Daudi (Deceased) v Simon Nganga Mbugua & 2 others; Monarch Insurance Company Ltd (Interested Party)
    [2018]eKLR
  • Pancras T. Swai vs Kenya Breweries Limited
    [2014]eKLR
  • Sarder Mohamed vs Charan Singh Nand Sing & Another
    (1959)E.A. 793
  • Kenyariri & Associates Advocates vs Salama Beach Hotel Limited & 4 Others
  • Kangwimi Kangethe & Co Advocates vs Nairobi Mamba Village
    [2015]eKLR
  • William Nember Obora & 73 Others Vs Rift Valley Railways (Kenya) Limited
    [2018]eKLR
  • Law Society of Kenya vs Malindi Law Society
    Civil Appeal No 28 of 2016
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

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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, "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.