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ELCPartially AllowedNot stated in extract (plaint dated 6th October 2011, filed 11th October 2011)· [2019] KEELC 1793 (KLR)

Kombo Hassan Kombo v Omar Said Abdalla & another [2019] KEELC 1793 (KLR)

Environment and Land Court (or High Court) at Mombasa

31 July 2019

AOA. Omollo

980 words in judgment

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The bottom line

A Kenyan court ruled that even when a land dispute is settled out of compromise, the plaintiff can still recover court costs from the party responsible.

What this practically means

Executive summary

This judgment deals solely with the question of who should bear the costs of a suit that was settled through compromise. The Plaintiff had sued the original (1st) Defendant over encroachment on his plot by way of a plaint filed on 11th October 2011. Interlocutory judgment was entered on 19th January 2012 and confirmed after formal proof on 18th October 2013. The 1st Defendant's application to set aside the ex-parte judgment was dismissed on 20th February 2015, and a ruling of 30th June 2015 joined an interested party as 2nd Defendant. When the suit was fixed for hearing on 27th April 2016, the parties reported that the offending structures had been removed and a survey report confirmed this, leaving only costs in dispute. Both sides filed written submissions. The court, guided by Section 27 of the Civil Procedure Act and Mativo J's considerations in Cecilia Karuru Nganyu v Barclays Bank of Kenya, held that the Plaintiff was entitled to costs because he was put through a lengthy process - formal proof, three interlocutory applications and Order 11 compliance - before the dispute was resolved. Since the Defendants admitted the structures were placed by the 2nd Defendant, the court ordered the 2nd Defendant to pay the Plaintiff's costs. The 1st Defendant's claim to recover costs from the Plaintiff on the basis he was wrongly sued was rejected: the suit having never been heard on merit, the court could not determine culpability, and investigating the guilty party would condemn a party unheard. The judgment was delivered at Mombasa on 31st July 2019 by A. Omollo, Judge.

Key legal issues

Whether the Plaintiff, whose suit was resolved by compromise, should be awarded costs

Holding

Yes - the Plaintiff was put through a process (three applications, formal proof, Order 11 compliance) before the structures were removed and was thus entitled to costs

Reasoning

Applying Mativo J's factors in Cecilia Karuru Nganyu (conduct of parties, subject of litigation, circumstances leading to proceedings, events and stage of termination), the court found the Plaintiff did not obtain an immediate admission; he incurred costs through multiple interlocutory processes before the offending structures were removed, warranting an award of costs.

p. 2

Whether the 1st Defendant was entitled to costs from the Plaintiff as a wrongly sued party

Holding

No - the court could not determine on submissions whether the 1st Defendant was wrongly sued since the suit was never heard on merit

Reasoning

The suit was resolved by compromise without a full hearing, so the court could not adjudicate culpability. Investigating who placed the structures at the costs stage would condemn a party unheard. The court therefore declined to award the 1st Defendant costs against the Plaintiff.

p. 2

Legal principles established

Where a suit is compromised, the court should not investigate which party was at fault, as that would condemn a party unheard
The court's discretion on costs must be exercised judiciously in the circumstances of each case

Court orders

1.The costs of the suit are awarded to the Plaintiff only
2.The 2nd Defendant is to pay the Plaintiff's costs of the suit
3.The 1st Defendant is not entitled to any costs from the Plaintiff

Authorities

Legislation

Civil Procedure ActSection 27
Civil Procedure Rules (Order 11)Order 11

Cases cited (2)

CECILIA KARURU NGANYU VS BARCLAYS BANK OF KENYA AND ANOTHER (2016) EKLR
(2016) EKLR
P.I.C.K VS MUTUAL KILONZO & 2 OTHERS

Jurisdiction invoked: Section 27 of the Civil Procedure Act (discretion to award costs)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kombo Hassan Kombo v Omar Said Abdalla & another [2019] KEELC 1793 (KLR)", Case Analysis (2019). Not stated in extract (plaint dated 6th October 2011, filed 11th October 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1793/eng@2019-07-31

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