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ELCOtherNot stated in the judgment· [2018] KEELC 2201 (KLR)

Tom Mbucho Vohya v Kenya Electricity Transmission Co Limited [2018] KEELC 2201 (KLR)

Environment and Land Court
5 June 2018
SOS. Okong'o
1,934 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who withdrew his compensation suit against a power line constructor got no costs because he couldn't prove the defendant was at fault.

What this practically means

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Executive summary

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The plaintiff, the registered owner of two parcels of land known as Kajiado/Olchoro-Onyore/5365 and 5633, sued the defendant, which was constructing the Suswa-Isinya 400 KV transmission line, claiming that the defendant's offer of Kshs.327,654.60 as compensation for a way-leave over part of the land was arbitrary and contrary to Article 40 of the Constitution. The plaintiff sought a permanent injunction, compensation before construction, general damages and costs, and filed a Notice of Motion dated 12th May 2014 for a temporary injunction. On 12th June 2014 the court ordered maintenance of status quo; the injunction application was never heard on merit. On 17th December 2015 the defendant reported that it had re-routed the transmission line away from the plaintiff's land, and on 4th October 2016 the parties recorded a consent marking the suit as withdrawn with costs left for determination. In submissions on costs, the plaintiff, relying on Morgan Air Cargo Ltd v Evrest Enterprises Ltd (2014) eKLR, argued that withdrawal does not disentitle a plaintiff to costs where the suit was occasioned by the defendant's fault. The defendant argued that costs follow the event, that there was no judgment, and proposed that each party bear its own costs. The court held that while withdrawal per se does not disentitle a plaintiff to costs, a plaintiff whose suit was never heard must demonstrate the defendant's fault; finding the allegations of wrongdoing unsubstantiated and the cited authority distinguishable, the court ordered each party to bear its own costs. Delivered at Nairobi on 5th June 2018 by S. Okong'o, Judge.

Key legal issues

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01

Costs following withdrawal of a suit without a hearing

Holding

The plaintiff was not entitled to costs; each party was to bear its own costs because no judgment was entered for either party and the defendant's fault was unsubstantiated

Reasoning

The court held that its discretion on costs must be exercised judiciously. Although withdrawal per se does not bar a costs claim, a plaintiff whose suit is withdrawn without hearing must show the suit was occasioned by the defendant's fault. The interlocutory injunction was never decided on merit, no judgment was entered for either party, and the allegations of wrongdoing against the defendant were unsubstantiated. The plaintiff's authority was distinguished on facts because in that case judgment had been entered for the plaintiff by consent.

p. 2
02

Distinction of Morgan Air Cargo Ltd v Evrest Enterprises Ltd

Holding

The case relied on by the plaintiff was distinguishable on facts and did not assist him

Reasoning

The plaintiff relied on Morgan Air Cargo Ltd v Evrest Enterprises Ltd (2014) eKLR for the proposition that withdrawal does not disentitle a plaintiff to costs unless he was at fault. The court agreed with the principle but found the facts distinguishable: in that case judgment had been entered for the plaintiff by consent and only costs were left to the court, whereas here the suit was withdrawn without any hearing or judgment, so the plaintiff could not be said to have substantially succeeded.

p. 2

Legal principles established

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  • Withdrawal of a suit per se does not disentitle a plaintiff to costs, but where the suit was not heard the plaintiff must demonstrate that the suit was brought as a result of the defendant's fault

Court orders

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  1. 1.Each party to bear its own costs of the suit

Authorities

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Legislation

  • Constitution of KenyaArticle 40

Cases cited (1)

  • Morgan Air Cargo Ltd. v Evrest Enterprises Ltd.
    (2014) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes; discretionary power to award costs

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Tom Mbucho Vohya v Kenya Electricity Transmission Co Limited [2018] KEELC 2201 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2201/eng@2018-06-05

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