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ELCOtherBusia ELCC (originating plaint dated 16th May 2017)· [2019] KEELC 4756 (KLR)

George Ogweno Wanga v National Bank of Kenya Ltd [2019] KEELC 4756 (KLR)

High Court of Kenya (Environment and Land Division, Busia)
6 February 2019
1,411 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 High Court denied the National Bank of Kenya legal costs because its own refusal to release a borrower's land title forced the borrower to sue.

What this practically means

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Executive summary

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The Plaintiff sued the National Bank of Kenya seeking an order compelling it to discharge a charge over L.R. BUKHAYO/BUGENGI/2421, pleaded that a Kshs.100,000 loan and interest had been fully repaid or, alternatively, that any balance was time-barred. The Defendant admitted the loan and charge, asserted non-repayment, alleged prior injunctions had blocked auctions, and threatened to strike out the suit as res judicata. On the hearing date the Plaintiff sought to withdraw the suit; the Defendant did not object save for costs, and the parties filed written submissions on costs. The Plaintiff argued the cause of action had been overtaken by events because the Land Registrar had vacated the charge under section 85 of the Land Act, relying on Little Africa Kenya Ltd for the relevance of parties' conduct. The Defendant relied on Supreme Court and Court of Appeal authorities on a party's right to withdraw. The court held that although costs follow the event under section 27(1) of the Civil Procedure Act, costs remain discretionary. It found the Defendant guilty of blameworthy conduct: having lost Busia CMCC No. 387 of 2009 and Busia HCC No. 39 of 1997 without appealing, and having refused repeated requests to discharge the charge, its defence was contradictory (simultaneously alleging indebtedness and res judicata) and induced unnecessary litigation. The court noted the Plaintiff's laches but held he had no option but to sue. The suit stood withdrawn and each party was ordered to bear its own costs.

Key legal issues

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01

Whether costs should be awarded to the Defendant on the Plaintiff's withdrawal of the suit

Holding

The Defendant was denied costs because its blameworthy conduct — refusing to discharge the charge after losing two prior cases — left the Plaintiff with no option but to sue

Reasoning

Costs follow the event under section 27(1) of the Civil Procedure Act but remain discretionary. A defendant whose unreasonable conduct induced the litigation may be deprived of costs. The Defendant had lost Busia CMCC No. 387 of 2009 and Busia HCC No. 39 of 1997, made no appeal, and declined requests to discharge the charge; the Registrar's later vacation of the charge under the Land Act mooted the cause of action.

p. 2
02

Whether the Defendant's Defence was coherent on res judicata and indebtedness

Holding

The court noted the Defence's averments that the Plaintiff was still indebted and that the suit was res judicata were mutually contradictory

Reasoning

The Defence simultaneously asserted ongoing indebtedness and res judicata arising from prior determinations of the same cause of action — positions described as diametrically opposed. Combined with two prior losses and the absence of appeal, this supported the conclusion that the Defendant's defence sent the court on a wild goose chase and justified denying costs.

p. 2

Legal principles established

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  • Costs follow the event under the proviso to section 27(1) of the Civil Procedure Act, but the award of costs remains discretionary and is not automatic
  • A successful defendant may justifiably be deprived of costs where his own conduct induced the litigation

Court orders

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  1. 1.The suit, already marked withdrawn, remains withdrawn
  2. 2.Each party to bear its own costs
Jurisdiction invoked
Original civil jurisdiction under the Civil Procedure Act (costs discretionary under section 27(1)); suit concerned a charge over land L.R. BUKHAYO/BUGENGI/2421

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, "George Ogweno Wanga v National Bank of Kenya Ltd [2019] KEELC 4756 (KLR)", Case Analysis (2019). Busia ELCC (originating plaint dated 16th May 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4756/eng@2019-02-06

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