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ELCOtherELC 358 of 2009 (as per record, suit over LR 36/11/1 Eastleigh)· [2021] KEELC 263 (KLR)

George Gikubu Mbuthia v Mohammud Sheikh Hussein & 4 others [2021] KEELC 263 (KLR)

Environment and Land Court

15 December 2021

LMLUCY N. MBUGUA

806 words in judgment

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The bottom line

A Kenyan plaintiff who withdrew his land suit was ordered to pay all the defendants' legal costs because costs follow the event under Kenyan law.

What this practically means

Executive summary

This ruling by the Environment and Land Court, Nairobi (Lucy N. Mbugua, J) determined only the question of costs following the Plaintiff's withdrawal of his suit on 24th November 2021. The suit, filed on 12th February 2019 by plaint and further amended plaint, had sought a declaration that the Plaintiff was the lawful proprietor of LR 36/11/1 Eastleigh, cumulative rent of Kshs. 232,880,000, permanent and mandatory injunctions restraining interference with the property, compelling delivery of vacant possession, and cancellation of the registration in favour of the 1st Defendant, plus costs. The 1st Defendant asserted he was the registered proprietor, having purchased the property from HFCK for Kshs. 20,000,000 in 2006, and argued the suit was an abuse of process given four prior suits and appeals between the same parties. The 3rd Defendant traced the title history from 1974 onward. An earlier application to withdraw the suit was dismissed for want of prosecution, but on 24th November 2021 the Plaintiff confirmed he wished to withdraw and the suit was marked withdrawn, leaving only costs. Applying Section 27 of the Civil Procedure Act and the Supreme Court's decision in Jasbir Singh Rai, the court held that costs follow the event, found the Plaintiff to be a litigious litigant who dragged the parties into court, saw no good reason to deviate, and condemned the Plaintiff to pay the costs of the suit. Judgment was delivered virtually on 15th December 2021.

Key legal issues

Attribution of costs upon withdrawal of a suit

Holding

The withdrawing Plaintiff must pay the Defendants' costs as there is no good reason to depart from the rule that costs follow the event

Reasoning

Section 27 of the Civil Procedure Act provides that costs shall follow the event unless the court orders otherwise for good reason. The court adopted the Supreme Court's exposition in Jasbir Singh Rai on costs. The Defendants highlighted a litigation history depicting the Plaintiff as litigious, and the Plaintiff himself initiated the suit and withdrew it. No good reason was shown for deviation, so costs were awarded against the Plaintiff.

p. 2

Legal principles established

Costs follow the event and the principle compensates the successful party rather than penalising the losing party

Court orders

1.The Plaintiff is condemned to pay costs of this suit

Authorities

Legislation

Civil Procedure ActSection 27

Cases cited (1)

Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others
[2014] eKLR

Jurisdiction invoked: Section 27 of the Civil Procedure Act (costs following the event)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "George Gikubu Mbuthia v Mohammud Sheikh Hussein & 4 others [2021] KEELC 263 (KLR)", Case Analysis (2021). ELC 358 of 2009 (as per record, suit over LR 36/11/1 Eastleigh). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/263/eng@2021-12-15

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