David Kariuki & Budget Payless Car Hire & Tours v Joshua Wambua Muthama [2019] KEHC 5087 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

CIVIL CASE NO. 527  OF 2014

DAVID KARIUKI......................................................1ST APPELLANT

BUDGET PAYLESS CAR HIRE & TOURS..........2ND APPELLANT

VERSUS

JOSHUA WAMBUA MUTHAMA.............................. RESPONDENT

(Being an appeal from the Judgment on quantum of the Chief Magistrate’s Court at Milimani Civil Case No. 5470 of 2011 delivered on 4/12/2013)

RULING

This court delivered a judgment relating to this appeal on 15th November, 2017.  In that appeal I stated as follows,

“ I am persuaded that the award made by the lower court was inordinately high so as to reflect an erroneous estimate in the circumstances of this case.  It was not within the limits reflected in decided cases of comparable injuries.

Accordingly, there is reason to interfere with the same which I hereby do by reducing the award of general damages from Kshs. 1,100,000/= to Kshs. 800,000/= which shall be subjected to 25% contributory negligence leaving a balance of Kshs. 600,000/=.  To that extent only, this appeal succeeds.  The respondent shall be entitled to costs and interest at court rates based on the said figure from the date of the judgment of the lower court.”

The award of costs has now been contested calling for clarification on whether or not the appellant should be made to pay costs of the appeal considering that there was success in the appeal, albeit in part. I  have considered the submissions by the both counsel and revisited the provisions of Sections 26 and 27 of the Civil Procedure Act.  The respondent submits that this court is functus officio and may not revisit that order in the absence of any appeal.

On the other hand, the appellants have provided decisions of this court to indicate that this can be done at this stage.  It is the duty of the court to handle every matter presented before it for purposes of facilitating the just, expeditious, proportionate and affordable resolution of civil disputes.  I have asked myself whether in revisiting the said orders I will be failing in that duty.

The appellants have succeeded in reducing the award of the lower court by a considerable proportion.  In Civil Appeal No. 87 of 2013 Ben Bella Onyango t/a Avtech Systems & Another vs. Caroline Mutheu Kimiti this court stated as follows,

“The appellants have partly succeeded in this appeal.  The order that commends itself is that, each party shall bear their own costs of this appeal such that the respondent shall be entitled to costs and interest of the suit in the lower court based on the figures above.”

If the step proposed by the respondent is taken by the appellants, that is, lodging an appeal, this would add more costs and consume more judicial time in addressing such an appeal.    Section 3 of the Civil Procedure Act confers upon the court inherent power to make such orders as may be necessary for the ends of justice.

I believe that I have the power to address this subject and therefore hereby do so, by directing that the respondent shall be entitled to costs and interest at court rates based on the proceedings of the lower court and from the date of that judgment.  In this appeal therefore each party shall bear their own costs.

Dated, signed and delivered at Nairobi this 4th Day of July, 2019.

A. MBOGHOLI MSAGHA

JUDGE