Judgment
(Being an Appeal against the part judgment of HON. J.B. KALO in Mombasa CMCC NO.778 of 2015 delivered on 2nd March 2023)
1. HARUMRASHID GULAMMOHAMED CHAUDHRY, the Appellant herein , appeal to this Court against part of the judgment of HON J.B. KALO in Mombasa CMCC NO.778 of 2015 delivered on 2nd March 2023 on the following grounds, namely: -
a. THAT the trial court erred in law and in fact in failing to judiciously exercise its dissection by not awarding costs of the suit By failing to consider that a successful litigant can only be deprived of his costs. Where his conduct has led to litigation which might have been averted, yet it is the Respondents’ conduct that led to the suit in the trial court
b. That the trial court erred in law and in fact in failing to exercise its discretion judiciously by not awarding interest on the judgment awarded .
c. THAT the trial court erred in law and in fact in failing to judiciously exercise its discretion .
d. THAT the trial court erred in law and in fact in failing to judiciously exercise its discretion by not awarding costs and interest in the counterclaim .
e. THAT the trial court erred in law and in fact in failing to exercise its direction judiciously, when it disregarded the Appellant’s evidence on record.
f. THAT the trial court erred in law and in fact in failing to render a decision on prayer no. d in the plaint, in regard to the incidental costs of Kshs. 100,000.00 incurred in the transaction, thus disregarding the Appellant’s evidence on record.
- The appellant sought for orders : -
- THAT the judgment delivered by Hon. J.B. Kalo (C.M.) on 16th February 2023 be partially set aside in terms of costs and interest, AND a finding be made on Kshs. 100,000.00 incurred as incidental costs to the transaction.
- THAT the costs and interest of the suit be awarded to the Appellant
- THAT the costs and interest of the counter claim be awarded to the Appellant
- THAT the Appellant be awarded interest on the sum of Kshs. 3,000,000.00 being the deposit paid to the Respondent on 30th August 2012 till the date of payment in full.
- THAT the Respondent does pay to the Appellant Kshs. 100,000.00 as incidental costs to the transaction
- THAT this appeal be allowed.
- THAT the Appellant be awarded costs of this Appeal.
2. The Respondents filed Memorandum of Cross -Appeal dated 1.11.23 on the ground that –
a. The learned trial magistrate erred in law and fact in failing to award costs of the counterclaim to the cross-appellant from the date the suit was filed .
They sought that –
i.the appeal with dismissed with costs to the cross-appellant.
ii. That costs of this appeal be awarded to the cross-appellant.
iii. The cross-appellant be granted interest on (a) above at court rates.
3. This is a first appellate Court and the duty of this court is to re-evaluate the evidence of the lower court and arrive at its own decision considering that it neither had an opportunity to see nor hear the witnesses during their testimony. (see the case of Sielle vs Associated motors EA 1968 EA 123).
4. The suit in the lower court was based on a sale agreement between the parties and the learned trial Magistrate found that each party failed to perform part of its bargain and hence the agreement could not be completed. This appeal is based on issues of costs and interest which are pure points of law
.5. The appellant did not file submissions . The 1st and 2nd respondents /cross appellants submitted that Section 27 of the Civil procedure Act provides that costs follow event and thus it is not entitled to costs and interests . Further that this court can only interfere with the lower court’s discretion in awarding costs if it acted on wrong principles . It cited several authourities which supports the said contention to wit;-
ii. Supreme court in the case of Jabir Singh Rai v Tarlochan Singh Rai & 4 others (2014) eKLR where it was held ‘’ “(18) It emerges that the award of costs would normally be guided by the principle that ‘costs follow the event’: the effect being that the party who calls forth the event by instituting suit will bear the costs if the suit fails;” ‘
ii. Morgan Air Cargo Limited vs Everest Enterprises Limited (2014) EKLR
iii. Orix (k) Limited vs Paul Kabeu & 2 others (2014) eKLR
iv. Supermarine Handling Services Ltd vs Kenya Revenue Authourity eKLR
6. The respondents /Cross-appellants submitted that that costs follow event and that since the court held that both parties contributed to the failure of the agreement by not performing their obligations then it rightly declined to grant costs of the incidentals and interest on the sum of Kshs. 3,000,000/= .
7. I have carefully re-evaluated the entire evidence on record and the able submissions by Counsel herein
8. The issue for determination is whether the appellant is entitled to interest on the kshs 3,000,000/= deposit of the price which he paid and Kshs .100,000/= incurred for the incidentials as per the agreement..
9. Section 27 of the civil procedure Act provides ;-
“(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.
In the case of that Levben Products vs Alexander Films (SA) (PTY) Ltd 1957 (4) SA 225 (SR) at 227 that it stated:
"It is clear from authorities that the fundamental principle underling the award of costs is two-fold. In the first place the award of costs is matter in which the trial Judge is given discretion ...But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could have come to the conclusion arrived at....In the second place the general rule that costs should be awarded to the successful party, a rule which should not be departed from without the exercise of good grounds for doing so."
10. It is thus clear that costs follows the event . The event herein being that both parties were to blame for non- performance of the contract it thus follows that the issue of costs or the suit or incidentals does not arise. The learned trial Magistrate thus rightly disallowed the incidentals . The cross -appellant is thus not entitled to costs of incidentals .
11. On the issue of interest on the Kshs 3,000,000/= being part of the price paid by the appellant, the trials court ordered that the same be refunded within 30 days from the date of judgment and that incase of default interest would run on it from the 31st day. The appellant asked this court to order interest to run from 30.8.12 when the money was received till payment in full. The respondents cross -appellants submitted that they refunded the said sum within the timelines stipulated by the court and thus interest does not arise . Section 26 (1) of the Civil procedure Act provides-‘’ Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit.’’ It is thus trite from the foregoing that whether to grant costs or not is also at the discretion of the trial court and this must be exercised judicially . I again hold that since both parties were at fault then the appellant cannot now be heard to seek interest on what he deposited. In any event the sum was paid within the timelines set by the court. The learned trial Magistrate thus exercised his discretion rightly and within the law . I see no reason to interfere with the same.
12.The appeal and cross- appeal are thus devoid of merit and I proceed to dismiss them. Each party to bear his own costs .
Mwakizozo : I seek leave to appeal and certified copies of the proceedings and judgment .
Oruta : I have no objection .
Order : Leave to appeal is granted. Proceedings and judgment be supplied to appellant.