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)
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
#Key legal issues
#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
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
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.
Whether the rule that courts grant only orders sought applies permissively to costs
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
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.
Whether the garnishees were entitled to costs and from whom
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
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.
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.The application dated 2/8/2023 is dismissed with costs to the plaintiff
- 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.All the orders made as against the 5th garnishee on 10/08/2023 are set aside
- 4.The 5th garnishee shall be entitled to costs of Kshs. 30,000/- to be paid by the defendant
- 5.The 2nd, 3rd and 4th garnishees shall be paid costs of Kshs 20,000 each by the defendant
- 6.The costs of the application dated 8/8/2023 shall be borne by the defendant
- 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.