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ELCPartially AllowedELC Case (Busia) – suit withdrawn 21st January 2019; motion dated 13/7/2019· [2019] KEELC 262 (KLR)

Douglas Wabwire Wabidonge v John Ochieno Wanjala & 3 other; Cooperative Bank of Kenya (Interested Party) [2019] KEELC 262 (KLR)

Environment and Land Court
21 November 2019
779 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a plaintiff who withdrew his land suit must pay the bank's legal costs because he already knew the bank's interest from an earlier case.

What this practically means

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Executive summary

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The plaintiffs' suit against the defendant was withdrawn on 21st January 2019 before pre-trial directions were undertaken, and the trial judge directed parties to file submissions on costs. The Interested Party, Co-operative Bank of Kenya Ltd, filed a motion dated 13th July 2019 seeking judgment on the costs of the suit in its favour and that its bill of costs be taxed. The plaintiff opposed, arguing that he had joined the Interested Party because the green card for title Bukhayo/Mundika/10238 showed a charge in the bank's favour, and that he had first issued a demand letter dated 22nd June 2018 to the bank's Busia Branch which went unanswered; he relied on Cecilia Karuru Ngayu v Barclays Bank of Kenya. The Interested Party argued it was entitled to costs having entered appearance and substantially participated before withdrawal. The court, per A. Omollo J, agreed with the principles in Cecilia Karuru Ngayu but held they were unavailable to a plaintiff who brings a subsequent suit after being made aware of the history of the subject matter. Noting the plaintiff had been a party to Busia ELC Case No. 5 of 2014, in which the matters in issue had been conclusively determined, and that his replying affidavit made no mention of that suit, the court held he could not invoke Order 1 rule 7 of the Civil Procedure Rules. Section 27 of the Civil Procedure Act was applied, and the Interested Party was found entitled to costs, to be agreed upon or taxed. Judgment delivered at Busia on 21st November 2019.

Key legal issues

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01

Entitlement to costs upon withdrawal of suit

Holding

The Interested Party, having entered appearance and filed a defence before the suit was withdrawn, is entitled to costs against the plaintiff

Reasoning

The court considered the plaintiff's claim that a demand letter excused him from paying costs, and the Interested Party's argument that it incurred expenses by participating. The green card showed the charge registered in favour of the Interested Party. However, the plaintiff had been a party to Busia ELC Case No. 5 of 2014 in which the matters in issue were directly determined, so he knew or ought to have known of the bank's interest before filing.

p. 2
02

Availability of Order 1 rule 7 protection

Holding

The plaintiff could not rely on Order 1 rule 7 because he was a party to the prior determined suit

Reasoning

Order 1 rule 7 protects a plaintiff in doubt as to whom redress lies. The court held the plaintiff was not in genuine doubt: he had been party to the previous suit where the applicant's interest was determined, and his replying affidavit made no mention of that suit. The principles in Cecilia Karuru Ngayu on costs were accepted but held unavailable to a plaintiff aware of the subject matter's history.

p. 2

Legal principles established

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  • The protection of Order 1 rule 7 (joining defendants in doubt as to liability) is not available to a plaintiff who, having been a party to a prior suit in which the matter was determined, knew or ought to have known of the interested party's interest before joining it to a subsequent suit
  • Where a suit is withdrawn after appearance and defence by an interested party, section 27 of the Civil Procedure Act entitles that party to costs

Court orders

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  1. 1.Judgment entered on costs of the suit in favour of the Interested Party
  2. 2.Costs to be agreed upon or taxed by the taxing master

Authorities

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Legislation

  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 1 rule 7

Cases cited (1)

  • Cecilia Karuru Ngayu Vs Barclays Bank of Kenya & Ano
    (2016) eKLR
Jurisdiction invoked
Section 27 of the Civil Procedure Act; Order 1 rule 7 of the Civil Procedure Rules

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, "Douglas Wabwire Wabidonge v John Ochieno Wanjala & 3 other; Cooperative Bank of Kenya (Interested Party) [2019] KEELC 262 (KLR)", Case Analysis (2019). ELC Case (Busia) – suit withdrawn 21st January 2019; motion dated 13/7/2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/262/eng@2019-11-21

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