Githinji v Mworia & 2 others [2022] KEHC 11243 (KLR)

Githinji v Mworia & 2 others (Civil Case 71 of 2012) [2022] KEHC 11243 (KLR) (Civ) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11243 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 71 of 2012

JK Sergon, J

July 21, 2022

Between

Elvis Mutahi Githinji

Plaintiff

and

James Mutitu Mworia

1st Defendant

David Chege Mworia

2nd Defendant

Nation Media Group Limited

3rd Defendant

Ruling

1. The subject matter of this ruling is the motion dated April 19, 2022 whereof the plaintiff seeks to have the judgment delivered on September 9, 2016 to be amended so that an award of costs is provided for. The plaintiff filed the affidavit sworn by James T Makori in support of the motion. When served with the application, the defendants filed the affidavit sworn by James Mutitu Mworia, the 1st defendant herein to oppose the same.

2. I have considered the grounds stated on the face of the motion and the facts deponed in the rival affidavits. It is the submission of the plaintiff that this court delivered its judgment on September 9, 2016 but did not mention costs. The plaintiff urged this court to award him costs since he is a successful litigant. This court was urged to apply the slip to correct the error and award costs to the plaintiff.

3. The defendant opposed the application arguing that the plaintiff took more than six years to file the instant application yet he was made aware that costs was not awarded. The defendant further stated that the court exercised its discretion to deny the plaintiff costs hence there is no error the court made.

4. Having considered the rival submission, it is not in dispute that this court delivered its judgment on September 9, 2016 which was silent on costs. It is also not in dispute that the taxing officer vide her ruling delivered on September 6, 2018 declined to tax the plaintiff’s bill of costs dated June 29, 2017 because the court did not issue an order awarding costs.

5. The plaintiff has satisfactorily explained the delay in filing the motion. Under section 27 of the Civil Procedure Act, costs follow the event. In the instant case the plaintiff is a successful litigant. In the plaint the plaintiff sought for costs. Both the plaintiff and the defendants made submissions on costs. This court did not mention costs in its judgment yet the plaintiff had specifically prayed to be awarded costs.

6. I am satisfied that this court made an inadvertent mistake which mistake can be corrected using the slip rule pursuant to section 99 of the Civil Procedure Act.

7. In the end, I find the motion dated April 19, 2022 to be meritorious. It is allowed. Consequently, the judgment delivered on September 9, 2016 is amended to include an award of costs in favour of the plaintiff as against the defendants.

8. Such costs should be taxed. Each party to meet their own costs in respect of the instant motion.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 21ST DAY OF JULY, 2022. ………………………JK SERGONJUDGEIn the presence of:……………………………. for the plaintiff.……………………………. for the 1st defendant.……………………………. for the 2nd defendant.……………………………. for the 3rd defendant