Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNairobi Environment and Land Court Case No. E19 of 2020 (as referenced); ruling on applications dated 2/8/2023 and 8/8/2023· [2024] KEELC 344 (KLR)

Jomo Kenyatta University of Agriculture & Technology v Kwanza Estates Limited; Kenya Commercial Bank Limited & 4 others (Garnishee) (Environment & Land Case E19 of 2020) [2024] KEELC 344 (KLR)

Environment and Land Court
1 February 2024
8,942 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~36 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that when an appeal wipes out an entire judgment, any costs awarded in that judgment automatically disappear too.

What this practically means

#

Executive summary

#
This ruling by the Environment and Land Court at Malindi (Mwangi Njoroge, J) determined two applications arising from a landlord-tenant dispute between Jomo Kenyatta University of Agriculture and Technology (plaintiff) and Kwanza Estates Limited (defendant). The defendant sought to make absolute a garnishee order nisi for Kshs. 9,660,530.40, being taxed party-and-party costs of Kshs. 8,211,675.80 plus interest, asserting that the Court of Appeal judgment of 16/06/2023 did not set aside the trial court's costs order since the plaintiff's memorandum of appeal had only sought setting aside of the Kshs. 71,965,138.70 rent award. The plaintiff opposed, arguing the appeal succeeded in its entirety, extinguishing the counterclaim and its costs, and sought to set aside the ex parte garnishee orders of 3/08/2023. The court framed two issues: whether the garnishee order should be made absolute, and who should bear the garnishees' costs. Holding that the memorandum of appeal sought setting aside of the judgment 'in its entirety', and applying section 27 of the Civil Procedure Act that costs follow the event, the court found the wholly successful appeal impliedly vacated the costs order. It dismissed the defendant's application, allowed the plaintiff's application setting aside the garnishee orders against the 5th garnishee, awarded the 5th garnishee Kshs. 30,000/- and the 2nd, 3rd and 4th garnishees Kshs. 20,000/- each, all payable by the defendant, who also bore the plaintiff's costs of both applications.

Key legal issues

#
01

Whether the taxed party-and-party costs of Kshs. 8,211,675.80 plus interest remained payable to the defendant after the Court of Appeal judgment

Holding

The costs were no longer payable. The memorandum of appeal sought setting aside of the entire judgment and decree; the wholly successful appeal impliedly vacated the counterclaim and the costs order attached to it

Reasoning

The court examined the memorandum of appeal which sought quashing of the judgment, orders and decree 'in its entirety'. Since the plaintiff's appeal succeeded totally and the defendant's counterclaim was impliedly thrown out, section 27 CPA meant costs followed the event against the defendant. The Court of Appeal's order that each party bear its own costs of appeal was a signpost against any award of trial costs.

p. 12
02

Whether the rule that courts grant only orders sought applies permissively to costs

Holding

No. Costs are governed by statute; section 27 CPA provides the general principle that costs follow the event, and rules and pleadings cannot override it

Reasoning

The court distinguished Bell v Matterello, GMD v SAM, Paul Munenge Muiru and Bernard Aswani as cases concerning substantive relief, not costs. Section 27 CPA provides costs follow the event, and a permissive application of the pleadings rule on costs would set a bad precedent and open a loophole for mischief.

p. 12
03

Whether the garnishees were entitled to costs and from whom

Holding

The garnishees who appeared were entitled to costs, but payable by the defendant whose joinder of them was unnecessary since the 5th garnishee alone held sufficient funds

Reasoning

Relying on Order 23 Rule 4 and Nyandoro & Company Advocates, garnishees are entitled to costs of garnishee proceedings. The court found joinder of the 1st to 4th garnishees unjustified as the 5th garnishee's account held sufficient funds; it was unnecessarily punitive and oppressive, so the defendant was to bear their costs.

p. 15

Legal principles established

#
  • Costs follow the event under Section 27 of the Civil Procedure Act, and where an appellate court allows an appeal in its entirety and orders each party to bear its own costs of appeal, any trial-court costs awarded to the unsuccessful respondent are impliedly vacated
  • A prayer that judgment be set aside 'in its entirety' encompasses all orders including costs, excluding only consent orders preserved by the appellate court

Court orders

#
  1. 1.The application dated 2/8/2023 is dismissed with costs to the plaintiff
  2. 2.Prayer No 2 in the application dated 8/8/2023 is granted as prayed and the garnishee orders made ex parte on 3/8/2023 in so far as they were made against the 5th Garnishee are set aside
  3. 3.All the orders made as against the 5th garnishee on 10/08/2023 are set aside
  4. 4.The 5th garnishee shall be entitled to costs of Kshs. 30,000/- to be paid by the defendant
  5. 5.The 2nd, 3rd and 4th garnishees shall be paid costs of Kshs 20,000 each by the defendant
  6. 6.The costs of the application dated 8/8/2023 shall be borne by the defendant

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 27, 63(e)
  • Civil Procedure RulesOrder 23 Rules 1, 2, 3, 4, 9 & 10; Order 51 Rules 1, 15
  • High Court (Practice and Procedure) RulesRule 3
  • High Court (Organization and Administration) (General) Rules, 2016Rules 16 and 17
  • Advocates Remuneration (Amendment) Order 2014Schedule VI Paragraph 14(b)
  • Court of Appeal Rules 2022Rule 31(1); Rule 88(3) (Form F)

Cases cited (19)

  • Board Trustees, National Water Conservation & Pipeline Corporation (NWCPAC) Staff Superannuation Scheme v Mombasa Water Supply & Sanitation Co. Ltd
    [2017] eKLR
  • Maurice Odor Nikon vs Diamond Property Merchants Ltd and Co-Operative Bank Of Kenya Ltd (1st garnishee) and Equity Bank of Kenya Ltd (3rd garnishee)
    [2020] eKLR
  • Nyandoro & Company Advocates vs National Water Conservation & Pipeline Corporation; Kenya Commercial Bank Group Limited (Garnishee)
    [2021] eKLR
  • Telkom Kenya Limited v John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Limited)
    [2014] eKLR
  • Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others
    [2013] eKLR
  • Joseph Oduor Anode v Kenya Red Cross Society
    [2012] eKLR
  • Stanley Kaunga Nkarichia v Meru Teachers College & another
    [2016] eKLR
  • Bell & another v I.L Matterello Limited
    (Civil Appeal 72 of 2019) [2022] KECA 168 (KLR)
  • GMD v SAM
    [2020] eKLR
  • Julius Ndolo Sila v Kalpataru Power Transmission Ltd
    [2021] eKLR
  • Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others
    [2014] eKLR
  • Paul Munenge Muiru v Patrick Thindiu Muiru
    [2006] eKLR
  • Meya Agri Traders Ltd v Elgon House (2010) Ltd
    (Civil Appeal 15 of 2020) [2023] KECA 574 (KLR)
  • Kenya Commercial Bank Ltd Vs Benjoh Amalgamated & Another
    Nairobi CA 276 Of 1997
  • Harun Mwau & Others Vs Attorney General & Others
    NBI HC Petition 65 Of 2011 [2012] eKLR
  • Bernard Aswani Vs Reuben Mburu
    Civil Appeal No 136 Of 2019
  • Price & another v Hilder
    [1984] eKLR
  • Mbogo vs Shah
    1968 EA 93
  • Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates
    [2013] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; applications under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 23 and Order 51 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jomo Kenyatta University of Agriculture & Technology v Kwanza Estates Limited; Kenya Commercial Bank Limited & 4 others (Garnishee) (Environment & Land Case E19 of 2020) [2024] KEELC 344 (KLR)", Case Analysis (2024). Nairobi Environment and Land Court Case No. E19 of 2020 (as referenced); ruling on applications dated 2/8/2023 and 8/8/2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/344/eng@2024-02-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.