Peter Gathungu & another v Moffat Mwihuri [2017] KEELC 245 (KLR)
The bottom line
#A Kenyan court set aside a costs order obtained without disclosing a settlement, confirming parties must be honest with the court even when the other side is absent.
What this practically means
#Executive summary
#Key legal issues
#Whether the order of 9th May 2011 dismissing the suit and awarding costs should be set aside
Yes, insofar as it dismissed the suit and awarded costs; uncontroverted evidence showed the suit had been settled out of court and the plaintiffs were not served
The respondent did not controvert the applicant's averments that the suit had been compromised, consideration refunded, and the plaintiffs not personally served though their advocates had ceased acting. Counsel for the respondent knew of the settlement but failed to disclose it, breaching the duty under Section 1A(3) to assist the court. The court entertained serious doubt whether a costs order would have issued had the plaintiffs been heard. It therefore set aside the dismissal and costs orders and marked the suit settled.
Whether a respondent who settled the suit could sustain an order of costs
No; the court found no basis for the costs order in the circumstances
The court observed that the respondent had agreed to settle the suit out of court and refunded the consideration, yet obtained dismissal with costs without disclosing the settlement or personally serving the plaintiffs. This brought into question the circumstances of the order's issuance and the propriety of sustaining costs against the plaintiffs.
Legal principles established
#- A party or advocate is under a duty to assist the court to further the overriding objective of the Civil Procedure Act, including disclosing facts material to a just determination
Court orders
#- 1.Order for costs made on 9th May 2011 against the plaintiffs set aside
- 2.Order of dismissal of the suit dated 9th May 2011 set aside and substituted with an order marking the suit as settled
- 3.Each party to bear their own costs of the suit and the application
- Jurisdiction invoked
- Inherent and review jurisdiction under the Civil Procedure Act (Sections 1A, 1B, 3A)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Gathungu & another v Moffat Mwihuri [2017] KEELC 245 (KLR)", Case Analysis (2017). Not stated in the judgment (amended notice of motion dated 5th October, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/245/eng@2017-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.