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ELCPartially AllowedNakuru HCCC (suit number not stated on the face of the ruling; Notice of Motion dated 24th August 2016)· [2017] KEELC 3169 (KLR)

Meshack Ochora Osoro Aricha v National Bank Kenya Limited & another [2017] KEELC 3169 (KLR)

Environment and Land Court (High Court, Nakuru)
28 February 2017
DOD. O. Ohungo
1,409 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court stopped a borrower's new lawsuit against his bank until he pays costs from two earlier failed cases he filed and lost.

What this practically means

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Executive summary

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The plaintiff sued the National Bank of (K) Ltd and an auctioneering firm on 30th July 2015, seeking a permanent injunction restraining the sale of land known as Nakuru Municipality Block 25/338 and a declaration that the bank breached an agreement in the nature of a charge. The defendants responded by Notice of Motion dated 24th August 2016 under Order 25 rule 4 of the Civil Procedure Rules, 2010, seeking a stay of the suit pending payment of costs the plaintiff had been ordered to pay in two prior suits: Nakuru HCCC No. 2 of 2015, which he withdrew on 21st July 2015 with costs taxed at KShs 175,105, and Nakuru CMCC No. 942 of 2005, where his application was dismissed with costs assessed at KShs 180,330. The plaintiff filed no response and the application proceeded unopposed. Justice D. O. Ohungo found uncontroverted evidence that both sets of costs remained unpaid while the plaintiff prosecuted the current suit against the same defendants on the same subject matter. Relying on Patrick Kigera Mathia and the English authority Teasdale v HSBC Bank Plc, the court held that the obligation to pay costs survives withdrawal of a suit and that Order 25 rule 4 exists to protect the party owed costs from incurring further losses. The suit was stayed until both sets of costs are paid in full, with costs of the application to the defendants.

Key legal issues

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01

Whether the suit should be stayed pending payment of costs in prior suits between the same parties

Holding

The suit is stayed until the unpaid costs in Nakuru HCCC No. 2 of 2015 and Nakuru CMCC No. 942 of 2005 are paid in full

Reasoning

The court found uncontroverted evidence that the plaintiff withdrew Nakuru HCCC No. 2 of 2015 with costs of KShs 175,105 taxed to the 1st defendant, and that costs of KShs 180,330 awarded in Nakuru CMCC No. 942 of 2005 also remain unpaid. Despite this, the plaintiff filed and is prosecuting the present suit against the same defendants. Relying on Order 25 rule 4 and the authorities cited, the court held that the plaintiff's conduct disentitles him from further audience until the costs are paid, and stayed the suit accordingly.

p. 2

Legal principles established

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  • Under Order 25 rule 4 of the Civil Procedure Rules, where a subsequent suit is brought before payment of costs of a discontinued suit on the same or substantially the same cause of action, the court may stay the subsequent suit until those costs are paid

Court orders

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  1. 1.The suit is stayed until the costs awarded to the 1st defendant in Nakuru HCCC No. 2 of 2015 and Nakuru CMCC No. 942 of 2005 are paid in full
  2. 2.The defendants shall have the costs of the application

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 25 rule 4

Cases cited (2)

  • Patrick Kigera Mathia & Anr v Dr. Peter Mungai Ngugi & 2 Others
    [2011] eKLR
  • Teasdale v HSBC Bank Plc
    [2010] EWHC 612 (QB)
Jurisdiction invoked
Order 25 rule 4, Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Meshack Ochora Osoro Aricha v National Bank Kenya Limited & another [2017] KEELC 3169 (KLR)", Case Analysis (2017). Nakuru HCCC (suit number not stated on the face of the ruling; Notice of Motion dated 24th August 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3169/eng@2017-02-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.