George Gikubu Mbuthia v Small Enterprises Finance Ltd & 2 others [2015] KECA 370 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot attack a taxed costs bill without first challenging the court order that awarded those costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court (Kimaru J) erred in declining to set aside the certificate of taxation issued in favour of the 3rd respondent
- 2.Whether the costs awarded to the 3rd respondent pursuant to Mwera J's order striking her out of the suit could be collaterally challenged before a judge of concurrent jurisdiction
- 3.Whether the alleged illegality under Section 35 of the Advocates Act and Section 58(1) of the Registration of Titles Act rendered the award of costs unenforceable
Key legal issues
#Discretion on costs and appellate interference
Costs are discretionary and follow the event unless the court orders otherwise for stated reasons; an appellate court will not disturb a costs order unless the discretion was exercised unjudicially or on wrong principles.
The court traced the law to Section 27(1) of the Civil Procedure Act and its proviso, and to a line of authorities from Dattani v Dawda through Kiska Ltd v De Angels. Those authorities establish that a successful litigant may be deprived of costs only where his own conduct occasioned the litigation, and that appellate interference requires that the discretion was exercised unjudicially, on wrong principles, or that the reasons given do not constitute good reasons.
Impermissibility of collateral challenge to an unchallenged costs order
The order of Mwera J awarding costs to the 3rd respondent was valid and unchallenged, and the appellant could not attack the resulting certificate of taxation before Kimaru J, a judge of concurrent jurisdiction, without first setting aside or appealing that order.
The court found no evidence that the costs order had been set aside, varied or reviewed. Since Kimaru J enjoyed only concurrent jurisdiction with Mwera J, he could not entertain a challenge to a valid order of another coordinate judge. The appellant's remedy, if any, lay in challenging the costs order itself on appeal, which he never did. Consequently the Deputy Registrar's taxation stood on a valid foundation.
Alleged illegality under the Advocates Act and Registration of Titles Act
The court declined to determine the appellant's Section 35 Advocates Act and Section 58(1) Registration of Titles Act arguments, holding those issues fall to the trial judge in the substantive suit.
The court reasoned that the provisions did not fall for Mwera J's consideration when he struck out the 3rd respondent; his decision rested on lack of privity of contract and the rescission of the auction contract. Resolving the illegality question in this appeal from a taxation ruling would prejudice the trial of the main suit, so the court expressly refrained from expressing any view on it.
Legal principles established
#- Costs follow the event unless the court, for good reason, otherwise orders, and where costs do not follow the event the court must state its reasons in writing
- An appellate court will not interfere with a trial court's discretion on costs unless it was exercised unjudicially or on wrong principles
- A valid order of a competent court that has not been set aside, varied or reviewed cannot be collaterally attacked before a judge of concurrent jurisdiction; a certificate of taxation cannot be set aside without first challenging the order underpinning it
- A successful party improperly joined who is struck out of a suit is entitled to her costs, which follow the event of that application
Court orders
#- 1.The appeal is dismissed with costs to the 3rd respondent to be borne by the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi (Milimani Commercial Courts)
- H.C.C.C. No. 1403 of 1997
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (Court of Appeal jurisdiction under the Constitution and the Appellate Jurisdiction Act, as invoked by the notice of appeal; no specific article quoted)
Relief refused
#Setting aside the certificate of taxation issued in favour of the 3rd respondent
The underlying costs order of Mwera J remains valid and unchallenged; a judge of concurrent jurisdiction could not set aside the certificate without first challenging the order granting the Deputy Registrar jurisdiction to tax
Costs
Appeal dismissed with costs to the 3rd respondent (Anab Hussein Arab) to be borne by the appellant.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is therefore settled that costs of, and incidental to all suits are in the discretion of the court, but where the court decides that any costs shall not follow the event, the court is obligated to state its reasons in writing and where a trial court has exercised its discretion, an appellate court should not interfere unless, the discretion has been exercised unjudicially or on wrong principles.
In the instant case the order of Mwera J., awarding costs to the 3rd respondent has not been challenged on appeal nor has it been set aside or reviewed. It therefore remains a valid order of a competent court.
We can see no justification for depriving the successful 3rd respondent of her costs.
We have therefore refrained from expressing any view on the said challenge lest we put the trial Judge in a bind.
For the reasons given, we order that this appeal be and is hereby dismissed with costs to the 3 rd respondent to be borne by the appellant.
Issues in the judgment
#The judgment gives two different dates for the certificate of taxation (14th July 2003 in the opening and 15th July 2003 near the end) and two different renderings of the trial judge's name (Kimari/Kimaru)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Gikubu Mbuthia v Small Enterprises Finance Ltd & 2 others [2015] KECA 370 (KLR)", Case Analysis (2015). Civil Appeal No. 109 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/370/eng@2015-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.