George Ogweno Wanga v National Bank of Kenya Ltd [2019] KEELC 4756 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether costs should be awarded to the Defendant on the Plaintiff's withdrawal of the suit
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
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.
Whether the Defendant's Defence was coherent on res judicata and indebtedness
The court noted the Defence's averments that the Plaintiff was still indebted and that the suit was res judicata were mutually contradictory
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.
Legal principles established
#- 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
#- 1.The suit, already marked withdrawn, remains withdrawn
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.