' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
HIGH COURT CIVIL APPEAL NO. E045 OF 2024
SHAH NAIJU CHUNILAL ................................... 1 ST APPEALLANT
GUDKA HIREN MULJI ………………………………… 2 ND APPEALLANT
VERSUS
NATHAN SIMIYU WASIKE ..................................... RESPONDENT
JUDGMENT
Section 27 of the Civil Procedure Act places the award of costs at the discretion of the court even when it declares unambivalently that costs shall follow the event.
The words of the Proviso to the stipulation s imperative 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 Judgment appealed against, the trial court did render itself on costs and said: -
“ With regards to the issue of costs, the evidence on record from both sides is that the sale of land agreement was rescinded due to non-compliance on the part of the Plaintiffs with regards to timely payment of the consideration. For that reason, I decline to award the Plaintiffs costs of the suit or interest.”
This court paraphrases the excerpt to simply mean that the need of filing the suit was occasioned by the Plaintiff (henceforth appellant) who ultimately succeeded in getting an order for refund and was thus not entitled to be awarded costs.
To resolve the only issue in the appeal; whether or not the Plaintiff was to blame for the dispute leading to the suit, one must unravel how the sum of Kshs. 800,000/= ended in the hands of the Defendant.
As stated by the trial court in the excerpt above, it was common ground that the two parties indeed entered into an agreement for sale of land by which the Respondent was to sell to the Appellant a piece of land at an agreed price and consideration of Kshs. 6,000,000/=. It was equally common ground that there was a term of the agreement for sale that completion would be within 30 days but the evidence by the Appellant himself confirmed that full payment was made well after six months. That late payment led to cancellation of the agreement.
The appellant equally admitted that he received full refund in two instalments of Kshs. 4,400,000/= and 1,600,000/= but opted to deposit into the Respondents account the sum of Kshs. 800,000/=. In cross examination, the Appellant was forthright that he did not indicate on the deposit slip why he was depositing the sum into the Respondents account. By the time that sum of Kshs 800,000 was deposited into the respondent’s account, the notice of cancellation had in fact been long served.
In the words of the Appellant, in both evidence in chief and upon cross examination, he made the deposit because was still interested in the land even after the agreement had been cancelled and refunds effected.
The court agrees with the finding of the trial court that the litigation was necessitated by the unilateral act of the Appellant in depositing into the Respondents Advocates clients account the sum, after the agreement was called off, without notice and without indicating the purpose.
The court appreciates that it requires a very strong case for an Appellate court to interfere with a decision of the trial court, the master of the facts, reached upon exercise of discretion. It is not enough that had the appellate court sat and tried the matter, it would have come to a different conclusion.
Before an appellate court can interfere with a discretional order, there must be demonstration that the exercise of discretionary power was done injudiciously, capriciously or first whimsically. A decision is injudicious when it is not based on any reason or an established principal of law. The flipside is that an applicant must demonstrate deviation from the facts presented or running against an established legal principle applicable to the case.
Here, the words of the court in making the order declining to award the costs of the suit to the Appellant, show clearly that the court considered a material matter that was relevant for its consideration.
The court therefore finds that no basis has been laid to warrant interference with the decision on costs. It thus finds the appeal to lack merits and dismisses same with costs. The court assesses and fixes the costs of the appeal at Kshs. 30,000/=.
It is so ordered.
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IN THE HIGH COURT OF KENYA AT KITALE
HIGH COURT CIVIL APPEAL NO. E045 OF 2024
SHAH NAIJU CHUNILAL ................................... 1 ST APPEALLANT
GUDKA HIREN MULJI ………………………………… 2 ND APPEALLANT
VERSUS
NATHAN SIMIYU WASIKE ..................................... RESPONDENT
JUDGMENT
Section 27 of the Civil Procedure Act places the award of costs at the discretion of the court even when it declares unambivalently that costs shall follow the event.
The words of the Proviso to the stipulation s imperative 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 Judgment appealed against, the trial court did render itself on costs and said: -
“ With regards to the issue of costs, the evidence on record from both sides is that the sale of land agreement was rescinded due to non-compliance on the part of the Plaintiffs with regards to timely payment of the consideration. For that reason, I decline to award the Plaintiffs costs of the suit or interest.”
This court paraphrases the excerpt to simply mean that the need of filing the suit was occasioned by the Plaintiff (henceforth appellant) who ultimately succeeded in getting an order for refund and was thus not entitled to be awarded costs.
To resolve the only issue in the appeal; whether or not the Plaintiff was to blame for the dispute leading to the suit, one must unravel how the sum of Kshs. 800,000/= ended in the hands of the Defendant.
As stated by the trial court in the excerpt above, it was common ground that the two parties indeed entered into an agreement for sale of land by which the Respondent was to sell to the Appellant a piece of land at an agreed price and consideration of Kshs. 6,000,000/=. It was equally common ground that there was a term of the agreement for sale that completion would be within 30 days but the evidence by the Appellant himself confirmed that full payment was made well after six months. That late payment led to cancellation of the agreement.
The appellant equally admitted that he received full refund in two instalments of Kshs. 4,400,000/= and 1,600,000/= but opted to deposit into the Respondents account the sum of Kshs. 800,000/=. In cross examination, the Appellant was forthright that he did not indicate on the deposit slip why he was depositing the sum into the Respondents account. By the time that sum of Kshs 800,000 was deposited into the respondent’s account, the notice of cancellation had in fact been long served.
In the words of the Appellant, in both evidence in chief and upon cross examination, he made the deposit because was still interested in the land even after the agreement had been cancelled and refunds effected.
The court agrees with the finding of the trial court that the litigation was necessitated by the unilateral act of the Appellant in depositing into the Respondents Advocates clients account the sum, after the agreement was called off, without notice and without indicating the purpose.
The court appreciates that it requires a very strong case for an Appellate court to interfere with a decision of the trial court, the master of the facts, reached upon exercise of discretion. It is not enough that had the appellate court sat and tried the matter, it would have come to a different conclusion.
Before an appellate court can interfere with a discretional order, there must be demonstration that the exercise of discretionary power was done injudiciously, capriciously or first whimsically. A decision is injudicious when it is not based on any reason or an established principal of law. The flipside is that an applicant must demonstrate deviation from the facts presented or running against an established legal principle applicable to the case.
Here, the words of the court in making the order declining to award the costs of the suit to the Appellant, show clearly that the court considered a material matter that was relevant for its consideration.
The court therefore finds that no basis has been laid to warrant interference with the decision on costs. It thus finds the appeal to lack merits and dismisses same with costs. The court assesses and fixes the costs of the appeal at Kshs. 30,000/=.
It is so ordered.
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