Amritlal Bhamji Davda v Abdi Ahmed & 2 others

High Court, at Mombasa November 11, 1987

Githinji Ag J

Civil Case No 468 of 1979

Civil Practice and Procedure – costs – whether courts obliged to make order on costs – where court fails to make such order – whether such failure curable by review, appeal or revision – Civil Procedure Act (cap 21) sections 27, 99 – Civil Procedure Rules order XX rule 3.

Civil Practice and Procedure – interest – where decree is silent on interest – interest to be deemed as included under Civil Procedure Act section (cap 21) 26(2) – omission to order interest curable by correction under the Civil Procedure Act section 99.

The plaintiff sued the defendants seeking judgment against them jointly and severally as a result of an accident which he averred was occasioned by the negligence of the 1st defendant who was an employee of either the 2nd defendant or the 3rd defendant.

The 2nd and 3rd defendants filed separate defences and none claimed indemnity or contribution from the other. Consent judgment was entered on the issues of liability and quantum of damages and the hearing proceeded on the issue of who among the 2^nd and 3rd defendants was vicariously liable for the negligence of the 1^st defendant. The court found that the 3rd defendant was liable but it did not make any orders as to costs.

The advocate for the 1st and 2nd defendants applied for an order that the plaintiff or the 3rd defendant should pay the 1st and 2nd defendants’ costs.

Held:

1. Under the Civil Procedure Act (cap 21) section 27, costs are in the discretion of the court or judge provided that the costs of any action shall follow the event unless the court or judge shall for good reason otherwise order.

2. There is no principle which requires that the judge must necessarily order that the successful defendant should recover his costs from unsuccessful defendants or from the plaintiff. The matter is one of discretion.

3. It was reasonable for the plaintiff in this case to join the 2nd and 3^rd defendants since under the Civil Procedure Rules order I rule 3, all persons may be joined in a suit where if separate suits were brought against such persons, any common question of law or fact would arise.

4. A judgment once signed cannot afterwards be altered or added to save as provided by section 99 of the Civil Procedure Act or on review under order XX rule 3(3) of the Civil Procedure Rules.

5. The application was not one for review and it could only be taken to be an application to correct clerical or arithmetic mistakes arising in the judgment from any accidental slip or omission under section 99 of the Civil Procedure Rules.

6. In this case, there was no error or omission in the judgment which could be corrected under section 99 of the Civil Procedure Act. There was only lack of exercise of discretion in which case the applicants should have filed an application for revision or appealed.

7. Though the consent judgment was silent on interest, the interest could be deemed to have been ordered as provided in section 26(2) of the Civil Procedure Act. Moreover, the omission to order payment of interest can be corrected under section 99 of the Act.

Application dismissed.

Cases

1. Mayer v Harte [1960] 2 All ER 340

2. Quick Service Stores v Thakrar [1958] EA 357

Texts

1. Bingham, L. (1960) Motor Claim Cases London, Butterworths 8th Edn p118

2. Jacob, IH et al. (1985) The Supreme Court Practice London: Sweet &

Maxwell Vol I pp 351,874

Statutes

1. Civil Procedure Act (cap 21) sections 27, 99

2. Civil Procedure Rules (cap 21 Sub Leg) order I rule 3; order XX rule 3

3. Rules of the Supreme Court [UK] order 20 rule 11

Advocates

Mr Master for the Plaintiff

Mr Satchu for the 1st & 2nd Defendant

Mr Gikandi for the 3rd Defendant