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ELCOthernot stated in the judgment excerpt· [2020] KEELC 3367 (KLR)

David Ngati & 4 others & others v Embakasi Village Craft Curios & Jua Kali Association & 11 others [2020] KEELC 3367 (KLR)

Environment and Land Court
25 February 2020
KBK. Bor
258 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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A Kenyan land court ordered plaintiffs who withdrew their suit to pay the defendants' costs before pursuing a related case.

What this practically means

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Executive summary

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The Plaintiffs filed a Notice of Withdrawal of Suit on 6/5/2019, indicating that they were withdrawing the suit in order to prosecute ELC Case No. 63 of 2018 (David Ngati and 4 others v Elphaz Mutie and 7 Others). Following the withdrawal, the Defendants filed an application dated 7/6/2019 seeking the costs of the withdrawn suit and a stay of proceedings in ELC Case No. 63 of 2018 until those costs were paid. The application was supported by an affidavit of Owino Opiyo, advocate, deponing to the number of times the matter had come up for hearing. In allowing the application in part, K. Bor J reviewed the procedural history: by a ruling delivered on 20/9/2013, Mutungi J. awarded the Defendants the costs of the application dated 17/9/2012; the ruling of 28/2/2014 directed each party to bear its own costs of the application dated 4/10/2013; and Gacheru J., in her ruling of 7/9/2017, awarded costs to the alleged contemnor, Joseph Onyango. The court held that, in light of the reason for the withdrawal, the Defendants were entitled to the costs of the suit following its withdrawal, save for the applications in which costs had already been awarded or disposed of by earlier rulings. The court further ordered that proceedings in ELC Case No. 63 of 2018 be stayed until the costs in this suit were paid. The judgment was delivered at Nairobi on 25 February 2020, with no appearance for the Plaintiffs.

Key legal issues

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01

Entitlement to costs upon withdrawal of a suit

Holding

The Defendants are entitled to the costs of the suit following the Plaintiffs' withdrawal, except for applications whose costs were already awarded by prior rulings.

Reasoning

The Plaintiffs withdrew the suit to prosecute a related matter, ELC Case No. 63 of 2018. The court treated the withdrawal as triggering the Defendants' entitlement to costs. It reviewed the procedural history, noting prior rulings by Mutungi J. (20/9/2013 and 28/2/2014) and Gacheru J. (7/9/2017) that had already disposed of costs of specific interlocutory applications, and excluded those from the award.

p. 2
02

Stay of the successor proceedings until costs are paid

Holding

Proceedings in ELC Case No. 63 of 2018 are stayed until the costs in this suit are paid.

Reasoning

Because the Plaintiffs withdrew this suit precisely to prosecute ELC Case No. 63 of 2018, the court linked the two matters. To secure the Defendants' costs entitlement, the court conditioned continuation of the later suit on payment of the costs awarded here, effectively granting the Defendants' application for a stay of proceedings.

p. 2

Legal principles established

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  • A defendant is entitled to costs of a suit that the plaintiff withdraws, save where costs have already been disposed of by prior orders.

Court orders

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  1. 1.The Defendants are entitled to the costs of the suit following its withdrawal, except for the applications in which the court already awarded costs
  2. 2.Proceedings in ELC Case No. 63 of 2018 are stayed until the costs in this suit are paid
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (provision not stated in the judgment)

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, "David Ngati & 4 others & others v Embakasi Village Craft Curios & Jua Kali Association & 11 others [2020] KEELC 3367 (KLR)", Case Analysis (2020). not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3367/eng@2020-02-25

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