Naomi Mutio Nzoka v William Kumuren & 2 others [2021] KEELC 941 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that a buyer wrongly sued over a double land sale gets costs, with the seller who caused the mess paying them.
What this practically means
#Executive summary
#Key legal issues
#Whether the 2nd defendant, exonerated by a consent judgment between the plaintiff and the 1st defendant, is entitled to costs of the suit.
Yes. The 2nd defendant was entitled to costs, but only half costs, payable by the 1st defendant, since the 1st defendant's double sale of the same property caused the litigation.
Section 27(1) of the Civil Procedure Act gives the court discretion over costs, exercised judiciously. The general rule is that costs follow the event and a successful party is deprived of costs only for good cause. The 2nd defendant, a purchaser for value of the suit property, was exonerated by the consent under which the 1st defendant agreed to refund the plaintiff Ksh. 4,000,000. The court found no legitimate reason to depart from the norm, but noting the matter did not go to full hearing, awarded half costs.
Who should bear the 2nd defendant's costs.
The 1st defendant, being the party who entered into sale agreements over the same property with different parties, bears the 2nd defendant's half costs.
The court found from the pleadings and the consent that the 1st defendant was liable for contracting to sell the same property to both the plaintiff and the 2nd defendant, which is why he agreed to refund the plaintiff's monies. Liability for the litigation lay with the 1st defendant, not the plaintiff, and the consent amount already covered the plaintiff's costs.
Legal principles established
#- Costs are at the discretion of the court seized of the matter, to be exercised judiciously, and may be withheld from a successful party only for good cause shown.
- The general rule is that costs should be awarded to the successful party and should not be departed from without good grounds.
- The fact that parties settle a case by consent does not mean costs cannot be awarded.
Court orders
#- 1.The 2nd defendant is awarded half costs of the suit to be borne by the 1st defendant
- Jurisdiction invoked
- Section 27(1) of the Civil Procedure Act (discretion to award costs)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Naomi Mutio Nzoka v William Kumuren & 2 others [2021] KEELC 941 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/941/eng@2021-11-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.