David Mwangi Muiruri v Ali Bakari Mohammed [2018] KECA 13 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that winning a case does not automatically guarantee you get your legal costs paid by the other side.
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 learned Judge properly exercised his discretion in denying the appellant costs of the suit before the trial court and of the High Court appeal
- 2.Whether an appellate court can interfere with a discretionary award of costs
Key legal issues
#Exercise of discretion on costs under Section 27 of the Civil Procedure Act
The Court of Appeal declined to interfere with the High Court's denial of costs to the appellant, holding the Judge's discretion was properly exercised because the respondent had been erroneously deprived of his day in court
Section 27 gives the court full discretion over costs, with costs following the event only absent good reason. An appellate court interferes only where the discretion was exercised unjudicially, on wrong principles, or where the judge misdirected himself on law or facts, took into account irrelevant considerations, or was plainly wrong. The Judge gave a sound reason: the respondent was drawn into the litigation by averments in proceedings to which he was not party and was 'erroneously' denied a hearing, so condemning him to pay costs would be oppressive and a travesty of justice.
Res judicata where the earlier suit was struck out
The Court agreed with the High Court that the second suit was not res judicata since the first suit had been struck out and not heard and determined on merit
Although the issue was not formally before the Court as the appeal had been condensed to costs, the Court endorsed the Judge's finding that no res judicata arises where the earlier suit was struck out rather than heard and determined on merit, and that the respondent therefore ought not to have been condemned to pay costs to the appellant.
Legal principles established
#- Costs are discretionary and an appellate court will not interfere with an award of costs unless the discretion was exercised unjudicially, on wrong principles, or the order is plainly wrong
- A suit that has been struck out and not heard and determined on merit cannot found a plea of res judicata against a subsequent suit
Court orders
#- 1.The appeal is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi
- H.C.C.A. No. 54 of 2013
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Civil Procedure Act (appeal against the exercise of discretion on costs)
Relief refused
#Appellant's claim for costs of both suits before the trial court and the High Court appeal
The Judge's discretion on costs was exercised judiciously; the respondent ought not to have been condemned to pay costs as the striking out of his suit was erroneous
Costs
The appeal was dismissed with costs to the respondent; the order of the High Court that each party bear their own costs of the appeal was left undisturbed.
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.
where a trial court has exercised its discretion on costs, an appellate court should not interfere unless the discretion has been exercised unjudicially or on wrong principles. Where it gives no reason for its decision the appellate court will interfere if it is satisfied that the order is wrong.
The appellant was forced to institute suits as a result of averments made in proceedings in which he was not involved. He cannot be condemned to pay costs yet he was pulled into the dispute by the respondent.
Our finding is that this appeal lacks merit and it is hereby dismissed with costs to the respondent.
learned Judge used his discretion judiciously and we cannot interfere with his decision
Issues in the judgment
#Inconsistent case numbers for the suits across the judgment (CMCC No. 19 of 2013 vs CMCC No. 19 of 2012; HCCA No. 54 of 2014 vs H.C.C.A. No. 54 of 2013)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Mwangi Muiruri v Ali Bakari Mohammed [2018] KECA 13 (KLR)", Case Analysis (2018). Civil Appeal No. 106 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/13/eng@2018-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.