Muli v Pan Africa Chemicals Ltd (Civil Appeal 236 of 2018) [2023] KECA 573 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that winners of litigation get their legal costs paid, unless the judge gives a genuinely good reason to say otherwise.
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 erred when it ordered that each of the parties would meet their own costs of the appeal
Key legal issues
#Whether the High Court's order that each party bear its own costs, despite allowing the appellant's appeal, was a judicious exercise of discretion under section 27 of the Civil Procedure Act
It was not. The Judge's only stated reason was 'the peculiar circumstances', and the basis relied on - counsel being 'of little help' - related to the advocates, not the parties. Costs are payable to the party, not the advocate, so counsel's performance was an irrelevant consideration and no good reason was advanced to displace the norm that costs follow the event.
Section 27 provides that costs shall follow the event unless the court for good reason otherwise orders. The discretion is wide but must be exercised judicially. The Judge relied on the conduct of counsel rather than the parties, which was a misdirection, and gave no good reason to deprive the successful appellant of costs. The Court of Appeal therefore interfered, setting aside the costs order and substituting costs in favour of the appellant both in the High Court and in this appeal.
The standard for interference by the Court of Appeal with a judge's exercise of discretion
The Court of Appeal will not interfere with the exercise of discretion by a judge unless the judge misdirected himself in some matter or arrived at a wrong decision, or it is manifest that the judge was clearly wrong in the exercise of discretion resulting in misjustice. In costs matters specifically, the discretion is unimpeachable unless irrelevant factors were taken into account or relevant factors ignored.
Both parties agreed on the applicable standard, and the appellant cited Parliamentary Service Commission vs Martin Nyaga Wambora & Others to that effect. Applying that standard, the Court found the Judge's reliance on 'peculiar circumstances' related to counsel's conduct, an irrelevant factor, amounting to a misdirection that justified interference with the costs order.
Legal principles established
#- Ordinarily costs follow the event; a court may deprive a successful party of costs only for good reason, and attributing counsel's poor performance as a reason to deprive a successful party of costs is a misdirection.
- A judge's discretion on costs is unimpeachable unless shown to have taken into account irrelevant factors or failed to take into account relevant factors.
Court orders
#- 1.Set aside the order directing each party to pay his own costs of the appeal
- 2.Substituted an order directing the respondent to pay to the appellant the costs of the appeal at the High Court
- 3.The respondent to pay to the appellant the costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Not stated in the judgment
- Jurisdiction invoked
- First appeal / appeal to the Court of Appeal against the High Court's costs order under section 27 of the Civil Procedure Act
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.
Accordingly, we find merit in the appeal, and we now set aside the order directing each party to pay his own costs of the appeal. The said order is substituted with an order directing the respondent to pay to the appellant, the costs of the appeal at the High Court.
We further order that the respondent to pay to the appellant, the costs of this appeal.
Pursuant to section 27 of the Civil Procedure Act, costs ought, normally, to follow the event, unless the court directs otherwise, for good reason.
where a Judge has exercised his discretion on the question about which party is to be awarded costs, the discretion is unimpeachable unless it is shown that he had either taken into account irrelevant factors, or that he had failed to take into account some relevant factors.
Issues in the judgment
#The judgment does not state the case number, neutral citation, the names of the parties, or the identity of the learned Judge of the High Court, limiting full identification of the case.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muli v Pan Africa Chemicals Ltd (Civil Appeal 236 of 2018) [2023] KECA 573 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/573/eng@2023-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.