M K (Minor suing thr’ His Grandmother & Next Friend K M K v Joseph M. Nyale [2017] KEHC 784 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. 183 OF 2010

M K (Minor suing thr’ HIS GRANDMOTHER &

NEXT FRIEND K M K........................APPELLANT

VERSUS

JOSEPH M. NYALE..........................RESPONDENT

J U D G M E N T

1.  When this appeal came up for hearing after the parties had filedwritten submissions, the counsel recorded a consentabandoning the appeal on liability with no orders as to costs and requested the court to determine only the question whether or not it was proper for the trial court to deny to the appellant, having emerged successful, the costs of the suit at trial.

2.  In the judgment appeal against having determined the suit, as hedid, the trial court rendered itself as follows in costs:-

“Each party to bear his costs”.

3.  The Law on costs is enacted at section 27 of the Civil Procedure inthe following fashion:-

“Section 27. (1):  Subject to such conditions and limitationsas may be prescribed, and to the provisions of any law for the time being in force, the costs of an incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:

Provided that the costs of any action, cause or other matteror issue shall follow the event unless the court or judge shall for good reason otherwise order.

(2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent annum, and such interest shall be added to the costs and shall be recoverable as such”.

4. The suit giving rise to this appeal was a claim for compensation forpersonal injuries sustained by the Appellant as a result of alleged negligence on the part of Respondent leading to a collision of a bicycle and a motor cycle.

5. At the conclusion of the matter and by the judgment dated 27/7/2010the court entered judgment for the Appellant against the Respondent for a net sum of Kshs.76,100/= plus interests.  That determination shows that the Appellant succeeded against the Respondent hence the law dictate that the order on costs should have followed the event of success unless the court had good reasons to order otherwise.

6.  In this Appeal, the order that ‘each party bears own costs’ had theeffect of denying a successful litigant the costs the law demand to follow its success.  I interprete and understand the law to vest on a successful litigant the right to get costs unless the court orders otherwise for good reasons to be recorded.  That being the position it is not sufficient for the court or a judge to simply say each party shall bear own costs without forwarding such a determination on any grounds.

7.  Indeed the law grants to the court wide discretion to award costssubject to the general principles that the same, in normal circumstances ought  follow the event.  Like all judicial discretions, a court discharges its duties if it bases its discretion on some facts or reasons.  Where there are no reasons advance, the decision ceases to be based on a judicial discretion but is what courts have termed whim or caprice.

8.  Whether judicial or quasi-judicial, a person entrusted with theexercise of discretion must, as of necessity, direct himself properly in law and must consider all pertinent matters and must steer clear of all impertinent matters[1].  In other words the discretion given by law to a person or body of persons ought to and must be exercised with regard to the law and grounded upon facts and reason.  Where no facts or reason is advanced the decision thereby arrived at can only be termed arbitrary[2].  That is not a reputation any judicial action or determination should attract.

9.  In this appeal, there is no reason at all why the trial court orderedeach party to bear his costs.  That decision can only be termedarbitrary or injudicious.

10. As a first appellate court, I find that the trial court did not considerthe principles of law applicable on award of costs and thereby fell into error.  The error is enough and entitles this court to interfere with the trial courts finding, which is hereby set aside and in its place an Order made that the costs of proceedings before the trial court are awarded to the Appellant, as the plaintiff therein.

Dated and delivered at Mombasa this 6th day of December 2017

P.J.O. OTIENO

JUDGE

[1] Koriri J in Republic expert, Kenya Power & Lighting Co. Ltd & Another [2013] eKLR

[2] Halsburys Laws of England, 4th Ed (2010) Vol. 10 paragraph 16