Automated Summary
Key Facts
This case involves a dispute between Antony Thuo Kanai (Plaintiff/Respondent) and Cannon Assurance Limited (Defendant/Applicant) regarding the review of a 2015 court ruling that assessed costs at 50% in favor of the Plaintiff. The Applicant sought to correct alleged errors in the ruling and cost assessment, but the court dismissed the application, finding no clerical or legal errors on the face of the record and affirming the discretionary cost allocation.
Issues
- The court needed to assess whether the orders made in the ruling of 30th January 2015 were delivered in favor of the Plaintiff or the Defendant. The Applicant contended the orders were in the Defendant's favor, while the Plaintiff argued partial success.
- The court had to determine if there was an error apparent on the face of the record as claimed by the applicant in the Notice of Motion dated 12th May 2016. The Applicant argued that the ruling was in favor of the Defendant/Respondent, not the Plaintiff/Applicant, leading to an error in the cost assessment.
- The court examined whether it had residual jurisdiction under sections 80, 99, and 100 of the Civil Procedure Act to correct clerical or arithmetic errors in the orders. The Applicant claimed such jurisdiction exists for the interest of justice.
- The court considered whether there was a legal basis for the 50% cost assessment in favor of the Plaintiff. The Applicant argued that the successful party should receive costs, while the Respondent maintained that the court exercised its discretion appropriately.
- The court evaluated whether the Applicant's delay in filing the review application (five months after the ruling) was unreasonable, with the Respondent arguing it was an abuse of process.
Holdings
- The court determined that the ruling and consequential orders were not in favor of the Defendant/Respondent as claimed by the Applicant, but rather both parties were partially successful. The 50% cost assessment was a discretionary exercise based on the court's interpretation of the law and facts, not an error apparent on the face of the record.
- The application for review was dismissed with costs awarded to the Plaintiff/Respondent. The court held the Applicant failed to demonstrate a clerical/arithmetical error or sufficient grounds for review under the Civil Procedure Act, and the application was deemed an abuse of process due to delay.
Remedies
The Notice of Motion dated 12th May 2016 is dismissed with costs in favour of the Plaintiff/Respondent. The court found no error apparent on the face of the record and upheld the 50% cost assessment as a discretionary decision.
Legal Principles
The court applied the general rule that costs follow the cause but acknowledged that judicial discretion allows for variations when both parties are partially successful. It emphasized that cost assessments based on judicial discretion cannot be classified as clerical or arithmetic errors under sections 99 and 100 of the Civil Procedure Act. The court concluded that sharing costs at 50% was a discretionary decision aligned with the principle of costs following the cause.
Precedent Name
- Jashir Singh Rai and 3 others -vs- Tarlochan Singh Rai and 4 Others
- Abasi Balinda -vs- Fredrick Kangwama and Another
- Patrick Kilonzo & Teachers Service Commission
- Pancras T. Swai -vs- Kenya Breweries Ltd
- Daniel Okoth -vs- KNCHR
- Party of Independent Candidate of Kenya and Another -vs- Mutula Kilonzo and 2 Others
- Joseph Oduor Anode -vs- Kenya Red Cross Society
- Mayfair Holding Ltd -vs- Ahmed
- Kenfreight EA Ltd -vs- Star East African Company Limited
Cited Statute
- Civil Procedure Act, Cap 21, Laws of Kenya
- Civil Procedure Rules 2010
Judge Name
G.L. Nzioka
Passage Text
- The Court was merely exercising its judicial discretion in awarding the costs as ordered. That cannot be termed as error apparent on the face of the record. It's not a clerical or arithmetic mistake.
- I find that the notice of motion dated 12th May 2016 lacks merit. I dismiss it with costs to the Plaintiff/ Respondents.