Benson Muigai Hiram v Jacob Mwangi Muiruri & Elizabeth Wambui Muiruri
The bottom line
#A Kenyan court corrected a judgment's costs order against the losing party, but refused to undo a validly taxed certificate of costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the judgment of 31st October 2018 contained a clerical error on the award of costs correctable under Section 99
Yes - the Court found the costs order was erroneous since the Defendant's counterclaim succeeded and the Plaintiffs' claim was dismissed; the slip rule was applied to amend the judgment
The Court held that awarding costs to a losing party was an error apparent without detailed argument. The counterclaim was an independent suit which succeeded, so the successful Defendant could not be made to pay the Plaintiffs' costs. The Court found the trial judge intended to award costs to the decree holder and rectified the judgment accordingly, pardoning the delay of both parties.
Whether leave should be granted for Tim Kariuki & Co. Advocates to come on record
Yes - the previous advocate had ceased acting with the Court's leave and the prayer was unopposed
Order 9 rule 9 requires leave or consent for a change of advocate after judgment. The previous firm, Wairimu Kiongera & Co. Advocates, had been allowed to cease acting on 4th March 2020. The purpose of the rule is to protect advocates from mischievous clients, not to deny representation, and the prayer was not opposed.
Whether the application to set aside the Notice to Show Cause and Certificate of Costs was res judicata
No - the issues had not been adjudicated on 1st February 2023
Section 7 of the Civil Procedure Act bars re-litigation of matters directly and substantially in issue previously heard and finally decided. The Court found that on 1st February 2023 it had only noted discrepancies between the judgment and decree and declined to review the decree; the prayer for review of the NTSC and Certificate of Costs was never determined.
Whether the Notice to Show Cause should be set aside
Partially - set aside because execution was proceeding against the 1st Plaintiff alone although both Plaintiffs were liable and the 2nd Plaintiff is deceased
The Court found no evidence of attempted execution against the 2nd Plaintiff or her estate, and the 1st Plaintiff had informed the Deputy Registrar that the 2nd Plaintiff was deceased. Orders cannot issue against a dead person, so the NTSC was set aside without prejudice to a fresh NTSC against the 1st Plaintiff.
Legal principles established
#- Clerical or arithmetical mistakes in judgments may at any time be corrected by the court under the slip rule
- The slip rule applies only to give effect to the court's intention, not to sit on appeal on its own decision
- An erroneous conclusion of law or evidence is a ground for appeal, not review
- Change of advocate after judgment requires leave under Order 9 rule 9 of the Civil Procedure Rules
Court orders
#- 1.Leave granted to the Law Firm of Tim Kariuki & Co. Advocates to come on record for the Plaintiff
- 2.Defendant's application dated 21st March, 2023 allowed with no orders as to costs
- 3.Prayer No. (d) of the Judgment dated 31st October 2018 amended to read: costs of the suit payable by the Plaintiffs
- 4.Notice to Show Cause dated 5th October, 2022 and all consequential orders arising from it set aside
- 5.Plaintiff's application dated 8th March, 2023 partially allowed
- 6.Each party to bear his/her own costs of the applications
- Jurisdiction invoked
- Sections 99 and 100 of the Civil Procedure Act (slip rule) and Sections 80 and Order 45 of the Civil Procedure Rules (review), in the Court's original jurisdiction over ELC Case 483 of 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benson Muigai Hiram v Jacob Mwangi Muiruri & Elizabeth Wambui Muiruri", Case Analysis (2023). Environment & Land Case 483 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18485/eng@2023-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.