Joseph Kiprono Too v Unilever Tea Kenya Limited [2021] KEELC 416 (KLR)
The bottom line
#A Kenyan court ruled that withdrawing a land case doesn't automatically mean paying the company's legal costs.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to costs where a suit is withdrawn before hearing
The Applicant was not entitled to the costs of the suit; each party was ordered to bear its own costs because both parties' conduct contributed to the filing and termination of the proceedings
Section 27 provides that costs follow the event, but the award remains a judicial discretion to be exercised on the circumstances of each case. The court considered the factors in Morgan Air Cargo: conduct of parties, circumstances leading to institution and termination, stage and manner of termination, and the parties' relationship. The suit was genuinely founded and not frivolous; its withdrawal stemmed from the Respondent's inability to gather documentary evidence. The Applicant's counsel never attended court, filed only an 11-line replying affidavit without annexures, and never complied with Order 11 directions. Fairness dictated each party bear its own costs.
Whether the withdrawn suit was vexatious or frivolous so as to justify costs against the Respondent
The suit was genuinely founded and not frivolous or vexatious; the withdrawal resulted from an inability to collect sufficient documentary evidence
The Respondent claimed adverse possession to land he had occupied for over 60 years. The court found the suit genuinely founded, with withdrawal attributable to inability to secure documentary evidence - a technicality rather than an abuse of process. The Respondent, a peasant farmer, also pleaded inability to pay. These circumstances weighed against condemning the Respondent to costs.
Legal principles established
#- Costs follow the event but the award of costs remains at the discretion of the court, which must consider the circumstances of each case
- Where parties' conduct contributed to the filing and withdrawal of a suit, the court may order each party to bear their own costs notwithstanding the general rule
Court orders
#- 1.Each party shall bear its own costs of the suit
- 2.The application dated 24th August 2020 is dismissed with no costs
- Jurisdiction invoked
- Article 159 of the Constitution; Sections 1A, 1B, 3A & 27 of the Civil Procedure Act; Order 25 Rule 2(2) & 3 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mutoko v Hassan & 2 others (Environment & Land Case E065 of 2021) [2024] KEELC 411 (KLR)[2024] KEELC 411 (KLR)31 Jan 2024
Cite this brief
#Cite this brief
Caselaw, "Joseph Kiprono Too v Unilever Tea Kenya Limited [2021] KEELC 416 (KLR)", Case Analysis (2021). Notice of Motion dated 24th August 2020 in Kericho ELC (Originating Summons dated 8th June 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/416/eng@2021-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.