Automated Summary
Key Facts
The applicant, Geoffrey Kiania Kamwara, sought a review of a November 2022 judgment dismissing his adverse possession claim over 7.00 acres of land LR Tharaka/Chiakariga 'A'/1485. The respondent, Mwikamba Kagembe, occupied 1.82 acres of the same parcel. The court dismissed the review application, finding no new evidence, no error apparent on the record, and the application was not filed without unreasonable delay. The applicant's former advocates failed to file the review despite instructions. The respondent argued the application was an attempt to delay justice, and costs followed the event as the defendant successfully defended the case.
Issues
- The second issue addressed whether the court should review the judgment delivered on November 9, 2022, specifically regarding the costs awarded to the Respondent/Defendant. The Applicant argued the dismissal on a technicality and the costs award were unjust, citing Order 45 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act, but the court found no sufficient grounds for review due to delay and lack of new evidence.
- The first issue concerned whether the court should grant leave to the firm of M/S Waklaw Advocates to come on record for the Applicant/plaintiff in place of M/S Mutegi Kithaka Advocates, as required by Order 9 Rule 9 of the Civil Procedure Rules.
Holdings
- Leave is granted to the firm of Waklaw Advocates to come on record for the Plaintiff in place of M/s. Mutegi Kithaka Advocates.
- Prayers 3 and 4 of the Notice of motion dated 30th March, 2023 are dismissed. The court found no sufficient grounds to review the costs awarded to the Defendant, as the application was untimely and lacked new evidence or legal error.
Remedies
- Parties are ordered to bear their own costs of the application as the applicant has partly succeeded.
- Leave is granted to the firm of Waklaw Advocates to come on record for the Plaintiff in place of M/s. Mutegi Kithaka Advocates.
Legal Principles
The court applied the principle that costs follow the event under Section 27 of the Civil Procedure Act, compensating the successful party for the trouble taken in prosecuting or defending the case. The judgment also emphasized the requirement for applications for review to be made without unreasonable delay, as per Order 45 Rule 1 of the Civil Procedure Rules 2010, and the discretion of the court in awarding costs based on the circumstances of the case.
Precedent Name
- Ajit Kumar Rath vs State of Orissa & others
- Republic v Public Procurement Administrative Review Board & 2 others
- Republic v Rosemary Wairimu Munene v Ibururu Dairy Farmers Co-operative Society Ltd
- Pancras T. Swai v Kenya Breweries Limited
- Sarder Mohamed v. Charan Singh Nand Sing and another
- Jasbir Singh Rai & 3 others v Tarlochan Rai & 4 others
- Tokesi Mambili and others v Simion Litsanga
Cited Statute
- Civil Procedure Rules
- Civil Procedure Rules 2010
- Civil Procedure Act Cap 21
Judge Name
CK YANO
Passage Text
- In my view, the Applicant has not met the pre-requisites set out in order 45 of the Civil Procedure Rules... I find no reason to review the order on costs as sought by Applicant herein.
- 9. In response, the Defendant/Respondent filed a Replying Affidavit dated May 2, 2023 sworn by Dennis Kimakia Advocate for the Defendant/Respondent wherein he depones that the application herein is scandalous, frivolous and an abuse of the courts time. That filing of an application for review 5 months after dismissal of suit is the applicant's tactic to delay justice and an attempt to deny the Defendant/Respondent the fruits of his successful judgement.
- 28. Section 27 of the Civil Procedure Act provides... 'costs follow the event unless the court or judge shall for good reason otherwise direct.'