In re Estate of Mwanaharusi Binti Ali (Deceased) (Succession Cause 198 of 2010) [2016] KEKC 22 (KLR)
The bottom line
#Kenya's Kadhi's Court in Mombasa confirmed it can award and tax costs, ruling that costs follow the event even in succession matters, awarding KES 34,570.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Kadhi's court to tax costs
The court has jurisdiction to award and tax costs; no rule designates whether the court or executive officer taxes, so either may, and the court proceeded to award costs
The Kadhi's court is a subordinate court under Article 169(1)(b). Pending rules by the Chief Justice under section 8(1) of the Kadhis Courts Act, Civil Procedure Act procedure applies. Section 27(1) vests costs discretion in the court. Schedule 7 of the Advocates Remuneration (Amendment) Order 2014 provides for costs in subordinate courts. In the absence of clear rules on who taxes in lower courts, either the court or executive officer may tax, and article 159(2)(d) favoured expeditious disposal.
Whether costs should be denied in succession matters
No; the general rule is costs follow the event, and the decisions cited by the petitioner merely reflected judicial discretion, not a bar to costs in the Kadhi's court
The petitioner relied on High Court decisions said to deny costs in succession matters, and argued the application was filed in the interest of the estate. The court held that costs follow the event under section 27(1) of the Civil Procedure Act, subject to judicial discretion, and that the cited decisions exercised discretion without denying Kadhi's courts the power to award costs.
Legal principles established
#- Costs of and incidental to suits are in the discretion of the court, and costs follow the event unless the court for good reason otherwise orders
- Kadhi's courts have power to award costs, applying subordinate court procedure pending rules under the Kadhis Courts Act
- The object of costs is to reimburse the successful party, not to penalize
Court orders
#- 1.The court proceeded to award costs in respect of the bill of costs
- 2.Costs awarded at KES 34,570.00 as per the bill of costs
- Jurisdiction invoked
- Article 169(1)(b) of the Constitution; Kadhis Courts Act Cap 11, section 8(1)(b); Civil Procedure Act Cap 21, section 27(1)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of Mwanaharusi Binti Ali (Deceased) (Succession Cause 198 of 2010) [2016] KEKC 22 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2016/22/eng@2016-08-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.