Mbindiyo v Mbindyo & 3 others (Civil Appeal E118 of 2021) [2024] KEHC 107 (KLR) (17 January 2024) (Ruling)
Neutral citation:
[2024] KEHC 107 (KLR)
Republic of Kenya
Civil Appeal E118 of 2021
FROO Olel, J
January 17, 2024
Between
Milcah Kameme Mbindiyo
Applicant
and
Benjamin Ndolo Mbindyo
1st Respondent
Yvonne Koki
2nd Respondent
Charles Stephen Mbindyo
3rd Respondent
Mary Munyeke
4th Respondent
Ruling
A. Introduction
1.The application before this court for determination is the Notice of Motion application dated 9th May 2023 brought pursuant to provisions of Section 1A, 1B, 3A, 63(e) and 80 of the civil procedure Act, Order 22 rule 22, Order 45 Rule (1) and Order 51 rules 1,2,3, 4 & 10(2) of the Civil Procedure Rules and all other enabling provision of law. By the said application, the applicants seek for orders that;a.That this application be certified urgent and it be heard Ex parte in the first instance.b.That an order do issue staying execution of the Judgment delivered on 28.03.2023 by this court and all other consequential orders and/or decree therein pending the hearing and determination of this application.c.That the court do review, vacate and/or set aside its decree given on 28th March 2023 and more specifically the limb assessing the costs of the appeal at Kshs150,000/= to each of the Respondentsd.That costs of the application be awarded to the applicant.
2.The application is supported by the grounds on the face of the said application and the supporting affidavit of the applicant Milcah Kamene Mbindyo dated the even date. The applicant avers that this court erred in assessing costs for each respondent at Kshs 150,000/=as taxation/assessment of cost was the special jurisdiction of the registrar of the high court as provided for under Rule 10 of the Advocates Remuneration Order. Jurisdiction was conferred by legislation and could not be assumed and thus this court erred to assume a jurisdiction it did not have, while assessing costs payable. This was an error on the face of the record, which warranted granting of the orders as sought.
3.The Respondents did oppose this application vide, their Replying affidavit sworn by one Yvonne Koki dated 13th June 2023 and Philip M Mulwa advocate for the 1st respondent dated 12th June 32023. They both averred that the application as filed was frivolous, scandalous and a non-starter for the court had jurisdiction under Section 27 of the civil procedure Act to award costs and determine the extent of the costs to be paid. Rule 10 of the Advocates Renumeration order only referred to Bills, which are to be taxed by the deputy registrar of the High court. In this suit there was no bill of costs pending nor did the court tax any bill of costs. The court rightly assessed the extent of the costs to be paid to the counsels of the respondents herein.
4.The respondents further averred the application as filed was an appeal as against the decision of the court and did not meet the basic requirements of Order 45 Rule 1(1)(b) of the Civil procedure Rules. The only option available to the applicant was to thus file and appeal. The application was thus ripe for dismissal and should be dismissed.
B. Determination
5.I have carefully considered the Application, Supporting Affidavit, the Respondent’s relying affidavit and both sets of submissions filed. The only issue for determination is whether this court should review its orders dated 28th March 2023 specifically the limb relating to assessment of each counsels’ costs at Kshs 150,000/=.
6.On the first issue, Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules provides as follows: -Section 80. Review[Order 45, rule 1.] Application for review of decree or order.
7.From the above provisions, it is clear that while Section 80 of the Civil Procedure Act grants the court the power to make orders for review, Order 45 sets out the jurisdiction and scope of review by hinging review to discovery of new and important matters or evidence, mistake or error on the face of the record and any other sufficient reason.
8.The Court of Appeal had the following to say in an application for review in the case of National Bank of Kenya Ltd vs Ndungu Njau.
9.In Muyodi vs. Industrial and Commercial Development Corporation & Another [2006] 1 EA 243, the Court of Appeal described an error apparent on the face of the record as follows:
10.Further in In Chandrakhant Joshibhai Patel -v- R [2004] TLR, 218 it had been held that an error stated to be apparent on the face of the record:
11.To the statutory grounds, the court may also add instances where the applicant was wrongly deprived of an opportunity to be heard or where the impugned decision or order was procured illegally or by fraud or perjury: see Serengeti Road Services -v- CRBD Bank Limited [2011] 2 EA 395. Also, to be included as part of sufficient reason is where the impugned order if reviewed, would lead the court in promoting public interest and enhancing public confidence in the rule of law and the system of justice: see Benjoh Amalgamated Limited & Another vs. Kenya Commercial Bank Limited (supra).
12.It is the applicant’s contention that there is an error apparent on the face of the said judgment dated 28th March 2023, specifically with regard to the order assessing the respondent’s advocates costs at Kshs 150,000/= each. It was her contention that under Rule 10 of the advocates Remuneration order, the same ought to have been taxed by the deputy registrar of the high court. The court thus acted without jurisdiction and to that extent the order on costs should be set aside. The respondents on the other had did content that the court was within its powers to assess the costs based on section 27 of the civil procedure Act.
13.The Respondents observation is obviously the right proposition in law. First and foremost, under Article 165(3)(a) of the constitution, the court has wide, original and unlimited jurisdiction to deal with civil matters, this provision as read together with Section 1A, 1B, 3A of the civil procedure Act, allows/mandate’s the court to expeditiously and proportionately determine proceedings efficiently and in a timely manner. Further nothing limits or otherwise affect the courts inherent power to make such orders as any be necessary for ends of justice and/or to prevent abuse of the court process.
14.The Civil Procedure Act at section 27 provides that;
15.Based on the above provision, It is crystal clear that court or judge shall have full powers to determine by whom and out of what property and to what extent such costs are to be paid and this court was therefore not wrong to assess costs as it so did no 28th March 2023. Rule 10 of the Advocates Remuneration Order in the circumstances does not apply and would only be applicable where either party has filed their bill of costs for taxation in which event, the same has to be taxed by the deputy registrar of the high court. Further such assessment is carried out to expeditiously dispose of matters and avoid unnecessary and winding taxation process when the parameters for the conducting the same are clear.
16.Finally, having found that the court has the jurisdiction to assess costs at the end of the trial/appeal, the same did not constitute an error and its decision cannot be review. The applicant’s only option was to appeal as against the same.
Disposition
17.The application dated 9th May 2023 is therefore wholly misconceived and is without merit. The same is dismissed with costs to the Respondents.
18.The costs are assessed at Kshs 30,000/= all-inclusive to each of the respondent’s advocates.
19.It is so ordered.
READ, SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS ON THIS 17TH DAY OF JANUARY, 2024.FRANCIS RAYOLA OLEL ..................................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRARIn the presence of:-Mr Musili for ApplicantMr Kimeu and Mr. Mutinda for 1st – 4th Respondent