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KadhiPartially AllowedNot stated in judgment

In re Estate of Mwanaharusi Binti Ali (Deceased) (Succession Cause 198 of 2010) [2016] KEKC 22 (KLR)

Kadhis' Court
18 August 2016
897 words in judgment
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The bottom line

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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

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Executive summary

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This was an application by the respondent for costs following the dismissal, with costs, of the petitioner's notice of motion dated February 8, 2015 by ruling delivered on June 18, 2015. The respondent filed a bill of costs of Kes 38,750.00 dated April 4, 2016. The petitioner opposed, arguing through Mr Mukomba that the Kadhi's court lacked jurisdiction to tax costs, that assessment was the duty of the executive officer, that no provision provided for taxation in Kadhi's courts, and that costs ought not be awarded in succession matters, especially where the application was filed in the interest of the estate, relying on Mbulwa Maingi v Veronica Nthamba and Pauline Muthoni Kigwe & Another. Mr Aboubakar for the respondent submitted the court had jurisdiction, noting that in the absence of a taxing officer in the lower court, the court itself should tax. The court held that the Kadhi's court is a subordinate court under Article 169(1)(b) of the Constitution and, pending rules under section 8(1) of the Kadhis Courts Act, Civil Procedure Act procedure applies. Section 27(1) vests discretion over costs in the court, with costs following the event. Applying Jasbir Singh Rai, the court held Kadhi's courts have power to award costs, that the cited High Court decisions merely exercised discretion, and that Schedule 7 of the Advocates Remuneration (Amendment) Order 2014 covers subordinate courts. Since the rules do not clarify whether the court or executive officer taxes in the lower court, either may do so; invoking Article 159(2)(d), the court awarded costs at KES 34,570.00 on August 18, 2016 at Mombasa.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Kadhi's court has jurisdiction to tax/assess costs in matters before it
  2. 2.Whether costs should be awarded to the respondent following dismissal of the petitioner's application
  3. 3.Whether costs should be awarded notwithstanding the succession nature of the matter

Key legal issues

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01

Jurisdiction of the Kadhi's court to tax costs

Holding

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

Reasoning

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.

p. 2
02

Whether costs should be denied in succession matters

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The court proceeded to award costs in respect of the bill of costs
  2. 2.Costs awarded at KES 34,570.00 as per the bill of costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AA
Abdulhalim H. AthmanPrincipal Kadhi
majority

Wrote the judgment

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)

Relief refused

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Full amount of the bill of costs of Kes 38,750.00 as filed

The court read the bill and awarded a lesser sum

p. 2

Petitioner's submission that no costs be awarded in succession matters

Court held costs follow the event and Kadhi's courts have power to award costs

p. 2

Costs

Costs awarded to the respondent/applicant at KES 34,570.00

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For expeditious disposal of the matter and without regard to technicalities pursuant to article 159 2 [d] the court shall proceed to award costs. I have read the bill of costs and hereby award same at KES 34,570.00
p. 2Final orders - award of costs
Although there is eminent good sense in the basic rule of costs – that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion.
p. 2Costs follow the event - Supreme Court principle
Until rules of court are made under subsection (1) of this section and so far as such rules do not extend, procedure and practice in a Kadhi’s Court shall be in accordance with those prescribed for subordinate courts by and under the Civil Procedure Act (Cap 21).
p. 2Applicable procedure in Kadhi's courts

Issues in the judgment

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minor

Party roles appear contradictory: the party opposing costs is called 'petitioner / respondent' and the applicant is called 'respondent / applicant', and submissions attribute arguments inconsistently (para 2 says Mr Mukomba 'for the respondent' sought no costs, but the closing lists Mr Mukomba for the petitioner/respondent)

minor

The bill of costs is dated April 4, 2016 at Kes 38,750.00 but the amount awarded (KES 34,570.00) differs from the figure stated in the bill

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.