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ELCAllowedMeru ELC Case (suit concerning Abogeta/U-Kithangari/481) - number not stated in judgment· [2019] KEELC 2581 (KLR)

Susan Tirindi M’miriti & 4 others v Gladys Nkuene & 5 others [2019] KEELC 2581 (KLR)

Environment and Land Court
10 July 2019
1,395 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court spared feuding family members from paying each other's legal costs after a withdrawn land case, prioritising family reconciliation.

What this practically means

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Executive summary

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This was a review application dated 4.7.2018 brought by the plaintiffs in a land suit concerning family/ancestral land parcel Abogeta/U-Kithangari/481 at Meru. The plaintiffs had withdrawn their suit by notice filed on 10.4.2017 and endorsed on 20.4.2017, intending to pursue their claims as objections in Meru Succession Cause No. 138 of 2015, which the 2nd and 4th defendants had filed over the same land, in order to save costs. Counsel for the 1st, 3rd, 4th and 5th defendants subsequently requested costs, to be agreed or taxed, and the court allowed that request on 7.5.2018, triggering the review application. The applicants argued that the parties are close family members (children of Gladys Nkuene and the late Miriti Kiambati), that they sued only to protect their property from being sold or to stop their eviction, and that condemning them to pay costs would inflame family acrimony. The 3rd defendant opposed, saying there is no bar to costs against family members and the court's discretion was properly exercised; the 2nd and 4th defendants supported the application. Relying on Order 45 rule 1 and Section 27(1) of the Civil Procedure Act, and applying Cecilia Karuru Ngayu and Supermarine Handling Services, the court found the unrebutted family relationship constituted sufficient reason for review. The application was allowed: the suit remains withdrawn, but each party was ordered to bear their own costs of the suit and the application.

Key legal issues

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01

Whether sufficient reasons existed for review of the costs order under Order 45 rule 1

Holding

The court found sufficient reasons for review, principally the close family relationship between the parties, which was unrebutted.

Reasoning

Order 45 rule 1 permits review for any other sufficient reason. The issue of costs had not been addressed when the notice of withdrawal was endorsed; costs were requested by the defendants' counsel. The applicants' account of the family ties was not rebutted by the respondents, and condemning family members to pay costs would breed further acrimony. Costs discretion under Section 27(1) CPA allows departure from the 'costs follow the event' rule for good reason, and the parties' relationship and reconciliation are relevant factors.

p. 2
02

Discretion on costs under Section 27(1) of the Civil Procedure Act

Holding

The court exercised its discretion to order each party to bear own costs notwithstanding the withdrawal of the suit.

Reasoning

Section 27(1) vests full discretion in the court on costs, with costs following the event only unless the court for good reason orders otherwise. Guided by the cited authorities, the court considered the family relationship, the circumstances that led to the suit (fear of disinheritance through a succession cause), and the likely consequences of a costs order on family harmony.

p. 2

Legal principles established

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  • In exercising discretion on costs the court may consider the conduct of the parties, the subject of litigation, the circumstances leading to the suit, the events at termination, the relationship between the parties and the need to promote reconciliation under Article 159(2)(c) of the Constitution
  • The exercise of the court's discretion on costs must be anchored on facts
  • Costs follow the event unless the court, for good reason, otherwise orders

Court orders

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  1. 1.The application dated 4.7.2018 is allowed
  2. 2.The suit remains as withdrawn pursuant to the notice of 10.4.2017
  3. 3.Each party to bear their own costs of this suit and of the present application

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 rule 1
  • Civil Procedure ActSection 27(1)
  • Constitution of KenyaArticle 159(2)(c)

Cases cited (2)

  • Cecilia Karuru Ngayu vs Barclays Bank of Kenya & another
    (2016) eKLR
  • Super marine handling services Ltd vs Kenya Revenue Authority
    (2010) eKLR
Jurisdiction invoked
Order 45 rule 1 of the Civil Procedure Rules (review jurisdiction); Section 27(1) Civil Procedure Act on 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, "Susan Tirindi M’miriti & 4 others v Gladys Nkuene & 5 others [2019] KEELC 2581 (KLR)", Case Analysis (2019). Meru ELC Case (suit concerning Abogeta/U-Kithangari/481) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2581/eng@2019-07-10

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