Agricultural Society of Kenya& 3 others v Mbarak Hamid Mbarak & 21 others [2018] KECA 518 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed the Agricultural Society of Kenya's appeal, confirming that judges' cost decisions will rarely be disturbed on appeal and unused chances to be heard are forfeited.
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 erred in dealing with the matter on a mention date and making substantive orders therein
- 2.Whether the appellants were denied their right to be heard on the issue of costs
- 3.Whether the appellants were entitled to costs of the Judicial Review proceedings before the High Court
- 4.Whether the Court of Appeal could interfere with the learned Judge's exercise of discretion on costs
Key legal issues
#Whether leave granted in judicial review could operate without a stay, and what became of costs pegged to the substantive motion when the motion was never filed
Costs of an interlocutory leave application directed to be 'in the Notice of Motion' abide the result of the main motion; if the motion is never filed, the court retains discretion on costs, and no award of costs to either party was proper where each party had partial success.
The learned Judge had directed costs of the leave application to be in the Notice of Motion, equivalent to costs in the cause. Only if the party in whose favour such an order is made later wins costs of the action would that party get the interlocutory costs. The motion lapsed after 21 days when it was never filed. The respondents had succeeded on leave but failed on the stay limb, so either party could have claimed half costs, amounting effectively to each party bearing its own costs or no costs being awarded - which is what the Judge ordered.
Whether the appellants were condemned unheard when the file was closed at a mention
The right to be heard was not violated because counsel holding brief for the appellants was given an opportunity to address the court on costs and declined, stating he had no instructions, and did not seek an adjournment.
The record showed that when the Judicial Review file was called out at a mention (together with a related file between the same parties), Mr. Orina asked that the file be closed as the substantive motion had not been filed. Mr. Ochieng, holding brief for the appellants' counsel, was given an opportunity to address the court but said he had no instructions and did not seek an adjournment to obtain instructions. The appellants therefore had an opportunity to be heard and could not claim it was violated.
Whether the Court of Appeal could interfere with the trial judge's discretion on costs
None of the recognised grounds for interfering with a discretionary decision were satisfied, so the discretion on costs could not be disturbed.
Citing Madan JA's formulation in United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd, the Court reiterated the circumscribed circumstances for interfering with discretion: misdirection in law, misapprehension of facts, taking into account irrelevant considerations, failing to take account of relevant considerations, or a plainly wrong decision. The Court found none satisfied and declined the appellants' invitation to interfere.
Legal principles established
#- The Court of Appeal will not interfere with a discretionary decision of the trial judge unless one of the established grounds (misdirection in law, misapprehension of facts, taking into account irrelevant considerations, failing to take account of relevant considerations, or a plainly wrong decision) is established.
- A party is not entitled to be heard in every litigation; once a reasonable opportunity of being heard is given and not utilised, the party cannot complain of denial of the right to be heard.
- An allegation of bias against a judicial officer must be founded on serious evidence and cannot be made merely because a party is dissatisfied with the outcome.
Court orders
#- 1.The appeal is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Mombasa
- Mombasa H.C. Judicial Review No. 13 of 2017
- Jurisdiction invoked
- First appellate jurisdiction over the High Court (Court of Appeal, Mombasa, hearing an appeal against the order of Ogola, J.)
Relief refused
#Allowance of the appeal with costs, including costs before the High Court
None of the grounds for interfering with the trial judge's discretionary decision on costs was established; the appellants were accorded an opportunity to be heard on costs at the mention.
Costs
The appeal is dismissed with costs to the respondents
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.
We have said enough to demonstrate that this appeal is devoid of merit. The same is hereby dismissed with costs to the respondents.
The Court of Appeal is only entitled to interfere if one or more of the following matters are established: First, that the Judge misdirected himself in law; secondly, that he misapprehended the facts, thirdly, that he took account of considerations of which he should not have taken account of
The law is not that a party must be heard in every litigation. The law is that parties must be given a reasonable opportunity of being heard and once that opportunity is given and is not utilized, then the only point on which the party not utilizing the opportunity can be heard is why he did not utilize it.
When such an order is made, it means that costs of the interlocutory application will abide the results of the main suit, in this case the results of the Notice of Motion.
'bias' is not just a four-letter word you hurl at a judicial officer. It is a serious matter that must be founded/grounded on serious evidence before it is raised
Issues in the judgment
#The judgment contains typographical errors, including in the quoted trial court passages and the respondents' 'Notice of Grounds for Affirmating (sic) the decision'; the Notice convening the SAGM dated 1st March 2017 is stated to be for a meeting 'to be held on 17th March, 2018' while the trial court's order refers to elections 'on 17.03.2017'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Agricultural Society of Kenya& 3 others v Mbarak Hamid Mbarak & 21 others [2018] KECA 518 (KLR)", Case Analysis (2018). Civil Appeal No. 71 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/518/eng@2018-06-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.