RE: MILIMANI COMMERCIAL COURT CIVIL SUIT NO.

4338OF 2016 JUNIOR

KILONZO KANU VERSUS HONDA MOTORCYCLE KENYA LIMITED

LEGAL OPINION ON THE ISSUE OF COST

Section 27 of the Civil Procedure Act which provided that award of cost of a suit is
a discretional matter and the court has to determine to whom and out of what
property and to what extent such costs shall be paid and to give all necessary
directions with regards to payment of cost.
The general rule is that cost follow event. This principle was enunciated in the case
of Republic vs Rosemary Wairimu Munene, Ex-Parte Applicant Vs Ihururu Dairy
Farmers Co-operative Society Ltd where the learned judge stated that the basic rule
on attribution of costs is that costs follow the event, however, this principle is not to
be used to penalize the losing party; rather it is for compensating the successful party
for the trouble taken in prosecuting or defending the case. Therefore, it is imperative
to consider the various steps taken by the parties in the case so as to appreciate the
trouble taken by both parties since the suit was filed.
Halsbury’s Laws of England state that, the court has discretion as to whether costs
are payable by one party to another, the amount of those costs, and when they are to
be paid. Where costs are in the discretion of the court, a party has no right to costs
unless and until the court awards them to him and the court has an absolute and
unfettered discretion to award or not to award them. This discretion must be
exercised judicially; it must not be exercised arbitrarily but in accordance with
reason and justice.
In the case of Cecilia Karuru Ngayu v Barclays Bank of Kenya & another [2016]
eKLR the learned judge listed eight grounds that courts should consider when
determining the issue on cost to a party:
1. The conduct of the parties,
2. The subject of litigation,
3. The circumstances which led to the institution of the proceedings,
4. The events which eventually led to their termination,
5. The stage at which the proceedings were terminated,
6. The manner in which they were terminated,
7. The relationship between the parties and;
8. The need to promote reconciliation amongst the disputing parties pursuant to
Article 159 (2) (c) of the Constitution.
In interpreting retired justice Richard Kuloba’s book Judicial Hint on Civil Procedure
justice Mativo stated that the law of cost as is understood by the Kenyan courts is that
where a plaintiff comes to enforce a legal right and there has been no misconduct on
his part and no vexatious or oppressive conduct is attributed to him, then he is
entitled to cost. This rule should equally apply when a defendant has been
wrongfully sued.
In this case the plaintiff was involved in an accident along Pumwani road where he
was hit by a motorcycle of registration number KMDR 591C. The plaintiff then sued
the defendant (our client) for negligence leading to the said accident. The defendant
denied liability on the grounds that it had already sold the motorcycle and at the time
of the accident the motorcycle was not in its possession. The defendant sought to
enjoin Lomas and Lomas ltd as a third party owing to the fact that it had sold the
motorcycle to Lomas an application which the court agreed to. Lomas denied liability
and sought to enjoin Peter Ochieng Okwako as the 2 nd third party citing the reason
that it had been sold to him therefore changing ownership. Peter refused and or
neglected to enter appearance and the matter proceeded without him.
As discussed earlier cost follows suit and in awarding cost to the defendant in this
case, the court needed to make a finding that this was an instance of wrongful and or
malicious prosecution against the defendant.
Black’s law dictionary defines malice as intent to commit an act that will impact
negatively on another individual. Therefore malice can be deduced from proving that a
party had prior knowledge of a fact and acted accordingly.
In this case, to deduce malice on the part of the plaintiff, the court needed to make a
finding that the plaintiff indeed had prior knowledge that the suit motorcycle did not
belong to the defendant. If that was proved then this would have amounted to
malicious and or wrongful prosecution and the defendant would have been entitled to
costs.
Part II of the Traffic Act provides for mandatory registration of motor vehicles in the
name of the actual owner of the motor vehicle. The authority also keeps a record of all
the registered motor vehicles and their actual owners. Before instituting the claim, the
plaintiff did a search on this record and found that the registered owner of the suit
motorcycle was the defendant herein (Honda Motorcycle Ltd). When instituting the
suit the plaintiff rightfully made a claim against the registered owner of the
motorcycle.
Therefore this was not an instance of malicious and or wrongful prosecution by the
plaintiff against the defendant. Using the reasonable man test, the claimant had no
way of knowing that the suit motorcycle did not belong to the defendant at the time of
the accident because from the records it indicated that it belonged to Honda
Motorcycle Ltd. Hence the court in its wisdom rightfully found that the suit did not
amount to malicious prosecution and the defendant was not entitled to cost.

Derrick Ochieng Otieno.