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ELCPartially AllowedKajiado ELC Constitutional Petition No. 10 of 2018· [2020] KEELC 2635 (KLR)

Sophie Brenda Wambui & 13 others v Lydiah Muthoni Kamau & 4 others; Kajiado County Government & another (Interested Parties) [2020] KEELC 2635 (KLR)

Environment and Land Court
13 May 2020
COChristine Ochieng
1,965 words in judgment
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The bottom line

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A Kenyan court set aside a Kshs 912,000 costs award against a party who was never served and was excluded from the consent withdrawing the case.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kajiado on the 3rd Respondent's Notice of Motion dated 21st May, 2019, brought under Order 12 Rule 7, Order 51 Rule 1, Order 45 Rule 1, Order 49 Rules 3 and 14(15) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act. The Applicant, through its Senior Legal Officer Simon Ngara W, sought a stay of taxation proceedings before the Taxing Master in Kajiado High Court Misc. Civil Application No. 2 of 2019 and the review/setting aside of the court's order of 24th September, 2018 awarding the Petitioners costs of Kshs. 912,000/= as against it. It contended that it was never served with the mention notices of 17th August and 24th September 2018, was not party to the consent compromising the petition, and that since the suit was withdrawn as the cause of action had been overtaken by events, there was no successful party entitled to costs. The Petitioners, through Emmanuel Busu Mwaka of Yano & Company Advocates, opposed the application, insisting on due service and the court's discretion on costs. The court framed a single issue: whether the costs order of 24th September 2018 should be set aside or reviewed. Relying on Section 80 of the Civil Procedure Act and Order 45 Rule 1, and associating itself with the Grain Bulk Handlers and Nyamogo & Nyamogo authorities, the court found the 3rd Respondent was not served with the mention notices and was excluded from the consent, and that a suit withdrawn by consent before hearing on the merits leaves no successful party. The court allowed the application, reviewed and set aside the costs order, and directed each party to bear its own costs. Judgment was delivered via email on 13th May, 2020 by Christine Ochieng, Judge.

Key legal issues

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Whether the court should review and set aside its order of 24th September 2018 awarding costs to the Petitioners against the 3rd Respondent

Holding

The application for review was merited. The 3rd Respondent was not served with the Mention Notices for 17th August 2018 and 24th September 2018 and was not party to the consent compromising the suit; the suit having been withdrawn before hearing on the merits, there was no successful party entitled to costs.

Reasoning

Section 80 of the Civil Procedure Act and Order 45 Rule 1 permit review by the court that made the order. The court found on the file that the 3rd Respondent was never served with mention notices and the Petitioners did not deny it was excluded from the consent. Applying the Grain Bulk Handlers authority, a suit withdrawn by consent before determination on the merits leaves no successful party, and costs should not have been awarded. The court associated itself with the cited authorities and reviewed the costs order, directing each party to bear its own costs.

p. 3

Legal principles established

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  • Where a suit is withdrawn by consent before hearing and determination on the merits, there is no successful party and no basis for an award of full costs to any party.
  • Consent to withdraw a suit cannot be interpreted to mean that one or the other party succeeded in the suit.

Court orders

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  1. 1.The orders issued on 24th September, 2018 awarding costs to the Petitioners as against the 3rd Respondent together with all consequential orders emanating therefrom be and are hereby reviewed as well as set aside.
  2. 2.Each party herein is directed to bear their own costs.

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 27
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 45 Rule 1(1)
  • Civil Procedure RulesOrder 49 Rules 3 and 14(15)

Cases cited (4)

  • Rufus Njuguna Miringu & Another v Martha Murithi & 2 others
    (2012) eKLR
  • Republic v Kenya Ports Authority Ex parte Grain Bulk Handlers Limited v Coast Silos Limited
    (2015) eKLR
  • Republic v Senior Principal Magistrate Mombasa & Others, Ex parte Nicholas Katumo Peter
  • Nyamogo & Nyamogo -vs- Kogo
    (2001) EA 174
Jurisdiction invoked
Sections 1A, 1B, 3A and 80 of the Civil Procedure Act and Order 45 Rule 1, Order 12 Rule 7, Order 51 Rule 1, Order 49 Rules 3 and 14(15) 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, "Sophie Brenda Wambui & 13 others v Lydiah Muthoni Kamau & 4 others; Kajiado County Government & another (Interested Parties) [2020] KEELC 2635 (KLR)", Case Analysis (2020). Kajiado ELC Constitutional Petition No. 10 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2635/eng@2020-05-13

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