Outa v Okello & 3 others (Petition (Application) 6 of 2014) [2024] KESC 2 (KLR) (16 February 2024) (Ruling)

Outa v Okello & 3 others (Petition (Application) 6 of 2014) [2024] KESC 2 (KLR) (16 February 2024) (Ruling)

Representation:Ms Okaka for the appellant(Otieno, Yogo, Ojuro & Co Advocates)Ms Adika h/b for Mr Nyanga for the 1st respondent/applicant(Ben Aduol Nyanga & Co. Advocates)No appearance for the 2nd to 4th respondents (Ben Aduol Nyanga & Co Advocates)
1.Upon perusing this motion brought pursuant to the provisions of sections 3A, 10(2), 21(2) & (4), 21A(a) and 23(2)(e) & (i) of the Supreme Court Act and rule 62(2) of the Supreme Court Rules, 2020 and the third schedule on Taxation of Costs, seeking that the certificate of costs signed and issued by the Deputy Registrar on October 9, 2023 be revoked; that the said certificate be corrected on the name of the 1st respondent to read Jared Otieno Odoto; and costs of this application; and
2.Upon perusing the affidavit sworn by the 1st respondent on November 24, 2023, in support of the motion as well as the submissions by the 1st respondent dated November 24, 2023, to the effect that the appellant in its Bill of Costs named the 1st respondent as Jared Otieno Odoto who is a stranger to the proceedings; that the Bill of Costs was served upon the 1st respondent more than 8 years after it was lodged; that the appellant did not move the court in any way to have the name amended or altered; that subsequently, the Deputy Registrar delivered his ruling on taxation on June 9, 2023 having the appellant’s Bill of Costs taxed against Jared Otieno Odoto; that thereafter, the matter proceeded on a reference on taxation before Ouko, SCJ, who in his ruling of September 22, 2023, maintained the names in the appellant’s Bill of Costs; that on October 9, 2023, the Deputy Registrar issued a Certificate of Costs pursuant to the ruling of the single Judge with the 1st respondent’s name in the taxation proceedings changed to Jared Odoyo Okello; that this action was without a formal order and without notice and participation of the 1st respondent; and that the change of name was unprocedural and not aligned with the ruling of the Judge and is an attempt to review the decision of the Judge; and
3.Noting that the appellant in his submissions and replying affidavit both filed on January 10, 2024, is opposed to the application on the grounds that: by the provisions of rule 62(2) of the Court’s rules the decision of a single Judge on a reference on taxation is final, therefore, the court lacks jurisdiction to entertain any further applications; further, that the 1st respondent as named in the petition of appeal is Jared Odoyo Okello who has participated in the proceedings all along; that even though the name in the Bill of Costs was erroneous, it does not change the identity of the 1st respondent; and that this application has no basis, is unknown in law and the same ought to be dismissed with costs; andIn view of the foregoing, I, now opine as follows:
4.Bearing in mind that the taxation in dispute arose from an election petition in which Fredrick Otieno Outa, the appellant, was found to have been properly elected Member of Parliament for Nyando Constituency in the 2013 General Elections, and that his costs in the High Court, Court of Appeal and in this court were to be borne by Jared Odoyo Okello, the 1st respondent. There is no contest that the two main candidates in the elections of the year in question were Jared Odoyo Okello and Fredrick Otieno Outa, who ended up in the High Court and thereafter, moved their grievance to the Court of Appeal and finally to this court. The judgment of this court rendered on July 3, 2014 was in respect of the 1st respondent, named specifically as Jared Odoyo Okello and the appellant, Fredrick Otieno Outa. Those ought to have been the names in the subsequent taxation proceedings. Clearly, from this obvious background, the appellant in taking out the Bill of Costs, inadvertently mixed up the names, by calling the 1st respondent “Jared Otieno Odoto”. However, the final Certificate of Costs, which is the formal conclusive expression of the Court’s decision issued on October 9, 2023, correctly named the 1st respondent as Jared Odoyo Okello representing the true reflection of the judgment of this court rendered on July 3, 2014.
5.Consequently, and for all the reasons explained, this application lacks substance and is, in my view, frivolous, vexatious and made in bad faith. This was clearly a case under the slip rule that did not have to take the course herein employed by the 1st respondent.
6.The application, for these reasons, must fail and is hereby dismissed with an order that the 1st respondent shall bear its costs as costs are awarded at the discretion of the court.
7.Accordingly, I order that:i.The motion dated November 24, 2023 be and is hereby dismissed; andii.The 1st respondent shall bear the costs of this motion.
DATED AND DELIVERED AT NAIROBI THIS 16TH DAY OF FEBRUARY 2024.………………………………………………W. OUKOJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRARSUPREME COURT OF KENYA
▲ To the top

Cited documents 1

Act 1
1. Supreme Court Act 464 citations

Documents citing this one 0

Date Case Court Judges Outcome Appeal outcome
16 February 2024 Outa v Okello & 3 others (Petition (Application) 6 of 2014) [2024] KESC 2 (KLR) (16 February 2024) (Ruling) This judgment Supreme Court W Ouko  
9 October 2023 ↳ None None B Kasavuli Dismissed