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ELCOtherNot stated in judgment· [2020] KEELC 3290 (KLR)

Geoffrey Gatirima Ng’ang’a & 3 others v Kamau Wa Ruhangi & 3 others [2020] KEELC 3290 (KLR)

Environment and Land Court
17 February 2020
KBK. Bor
641 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled that withdrawing a land suit because government road works resolved it doesn't mean the withdrawing party must pay the other side's costs.

What this practically means

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Executive summary

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The Plaintiffs, who had sued in 2014 alleging that the Defendants encroached on the road reserve abutting their properties fronting Kiambu Road and blocked their entrances, informed the court on 16 January 2020 that they wished to withdraw the suit as it had been overtaken by events. They opposed any award of costs to the 1st Defendant, who maintained he was entitled to costs for opposing the injunction application and attending court. The court directed the parties to file submissions on costs. The Plaintiffs relied on Mativo J's decision in Cecilia Karuru Ngayu v Barclays Bank of Kenya, citing the factors for costs: the parties' conduct, the subject of litigation, the circumstances of institution, the reasons for and stage and manner of termination, the parties' relationship, and reconciliation under Article 159 of the Constitution. They explained that the 4th Defendant, on instructions from the Ministry of Transport, Infrastructure, Housing, Urban Development and Public Works, had investigated the encroachment of road reserves along Kiambu Road before the road's expansion, which would resolve the suit; they also noted the 1st Defendant never filed a defence. The 1st Defendant argued the withdrawal was an afterthought to escape costs from a frivolous suit. The court held the suit was not frivolous since the 1st Defendant never refuted the claim, and the discontinuance resulted from the Ministry's commencement of road expansion works. It ordered that each party bear its own costs. The judgment was delivered by K. Bor J at Nairobi on 17 February 2020.

Key legal issues

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Whether the Plaintiffs should pay the 1st Defendant's costs upon withdrawing the suit as overtaken by events

Holding

No costs awarded; each party to bear its own costs because the suit was not frivolous and was discontinued due to the Ministry's commencement of road expansion works and investigations into the encroachment

Reasoning

The Plaintiffs sued in 2014 claiming encroachment on the road reserve abutting their properties. The suit was withdrawn because the Ministry of Transport, on whose instructions the 4th Defendant had investigated the encroachments, commenced works to expand Kiambu Road, which would resolve the dispute. The 1st Defendant never filed a defence despite entering appearance in 2014 and did not refute the claim, so the suit could not be characterised as frivolous. Applying the factors in Cecilia Karuru Ngayu v Barclays Bank of Kenya, the court held costs should not follow the withdrawing Plaintiffs.

p. 2

Legal principles established

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  • In determining costs on withdrawal of a suit, the court considers the conduct of the parties, the subject of litigation, circumstances leading to institution of proceedings, reasons for and stage/manner of termination, the parties' relationship, and the need to promote reconciliation under Article 159 of the Constitution

Court orders

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  1. 1.Each party will bear its own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159

Cases cited (1)

  • Cecilia Karuru Ngayu v Barclays Bank of Kenya and Another
    [2016] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land; costs determined under the court's discretion (Article 159 of the Constitution referenced on reconciliation)

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, "Geoffrey Gatirima Ng’ang’a & 3 others v Kamau Wa Ruhangi & 3 others [2020] KEELC 3290 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3290/eng@2020-02-17

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