Kenya Commercial Bank Ltd v Majengo (Miscellaneous Civil Case E027 of 2022)  KEHC 14024 (KLR) (11 October 2022) (Ruling)
Neutral citation:  KEHC 14024 (KLR)
Republic of Kenya
Miscellaneous Civil Case E027 of 2022
RE Aburili, J
October 11, 2022
Kenya Commercial Bank Ltd
Francis Odera Majengo
1.Vide HCCA E025 of 2021, this court rendered the decision dismissing the appeal for lacking in merit and directed the appellant to pursue its counterclaim against the respondent in a separate suit.
2.On costs, this court made the following orders, at paragraph 49:
3.The above orders on costs have been subject of different interpretations by both parties to the suit in the lower court and to the subject appeal.
4.As a result, the trial court Hon M O Wambani Chief Magistrate directed the parties’ advocates to file an application seeking for clarification of the said judgment of this court on costs.
5.According to the plaintiff/respondent, this court only ordered that each party bear their own costs in the appeal and not in the trial court since the dismissal of the appeal meant that the judgment of the lower court which was in favour of the plaintiff was with costs, was sustained.
6.On the part of the defendant/appellant in the said appeal, it is understood that this court rendered itself on costs by ordering that each party bear their own costs hence the plaintiff cannot file a bill of costs for taxation and that as such, the trial court has no jurisdiction to tax any party and party bill of costs. That is the genesis of the dispute on costs.
7.The question that I must answer is whether the order on costs in the appeal affected the trial court proceedings as well or only the appeal.
8.I have perused my judgment delivered on January 17, 2022 and which has not been challenged. I have also reproduced the orders in question on costs as above.
9.The law is clear that costs follow the event unless for good reason, the court decides otherwise. In other words, the court has discretion in awarding costs of the suit or on appeal, both for the appeal and trial court.
10.In this case, when I ordered that each party do bear their own costs, I did not indicate specifically whether the costs in issue were for the lower court or the appeal. I now appreciate why parties had to seek clarification of the said order.
11.Nonetheless, a reading of my judgment shows that I held that the respondent who was also the plaintiff in the lower court was at fault such that although the law was on his side being that the appellant defendant could not enforce the contract which was subject to registration of the chattel under the Chattels Transfer Act, the respondent/plaintiff having benefitted from an illegal act, did not deserve any costs.
12.In my mind, I was clear that indeed the respondent did not deserve any costs. Those costs are costs incurred in the prosecution/defence of the suit in the lower court where the illegality was first discovered by the trial court and in the High Court on appeal.
13.By this court using the words ‘any’ costs, I was clear in my mind that whether those costs were incurred in the lower court or on appeal, the respondent having benefited from an illegal transaction, he should not be allowed to benefit from it.
14.For the above reasons, I find that the defendant’s appellant’s counsel was correct in their interpretation of the order of this court on costs, which denied either party to the appeal costs of the suit in the lower court and on the appeal on account of the respondent/plaintiff having benefitted from an illegal act where he received money on a chattel that was not registered hence the appellant/defendant could not recover the money from him on that account in the specific suit.
15.I so clarify.
16.This file is closed.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 11TH DAY OF OCTOBER, 2022R E ABURILIJUDGE