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ELCOther· [2021] KEELC 1653 (KLR)

Dickson Muoki Mutuku & 2 others v James Mutuku Kimeu & 13 others [2021] KEELC 1653 (KLR)

Environment and Land Court
12 October 2021
TMT. Murigi
861 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that withdrawing a lawsuit doesn't avoid paying costs if defendants took defensive steps like entering appearance or filing objections.

What this practically means

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Executive summary

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The Plaintiffs, heirs of the estate of Benjamin Mutuku Mutiso, sued fourteen Defendants on 12 July 2021 seeking permanent injunctions against sale, leasing, logging and disposal of estate land, vacation of the suit land, demolition of structures and uprooting of crops on Plot Kilungu/Wautu/3048, together with costs. On 8 September 2021 the Plaintiffs filed a Notice of Withdrawal of Suit, and at a mention on 5 October 2021 sought to withdraw the suit with no orders as to costs. The Defendants did not oppose withdrawal but claimed their costs. The Plaintiffs argued that no costs were payable because none of the Defendants had filed a statement of defence. The court, applying section 27(1) of the Civil Procedure Act and the framework in Cecilia Karuru Ngayu v Barclays Bank of Kenya, held that the filing of Memoranda of Appearance by several Defendants and a Notice of Preliminary Objection by the 7th, 8th, 10th, 11th, 12th and 14th Defendants through SKM Advocates were important defensive steps and constituted an 'event' within the maxim that costs follow the event. No sufficient reason was advanced to deny costs. The court ordered that the suit be withdrawn as prayed and that the Plaintiffs pay the Defendants' costs, to be agreed or taxed.

Key legal issues

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01

Whether defendants who filed no statement of defence are entitled to costs when the plaintiff withdraws the suit

Holding

Yes. The court exercised its discretion under section 27(1) of the Civil Procedure Act and awarded the defendants costs because the filing of appearances and a preliminary objection was an important defensive step and an 'event' to which costs follow.

Reasoning

Section 27(1) gives the court full discretion over costs, with the default rule that costs follow the event unless the court directs otherwise for good reason. Following Cecilia Karuru Ngayu v Barclays Bank of Kenya, the court examined the conduct of the parties, the stage and manner of termination, and the steps taken. Although no defence was filed, several defendants entered appearance and filed a preliminary objection, incurring costs. The plaintiffs offered no sufficient reason to deprive them of costs.

p. 2

Legal principles established

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  • Filing a Memorandum of Appearance and a Notice of Preliminary Objection, even without a defence, constitutes an 'event' within the meaning of 'costs follow the event' entitling a defendant to costs on withdrawal of a suit.

Court orders

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  1. 1.The Plaintiffs suit is withdrawn as prayed.
  2. 2.The Plaintiffs to pay costs of the suit to be agreed upon by the parties or the taxing master of this court.

Authorities

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Legislation

  • Civil Procedure ActSection 27(1)
  • Constitution of Kenya, 2010Article 159(2)

Cases cited (1)

  • Cecilia Karuru Ngayu -Vs- Barclays Bank of Kenya & Another
    (2016) eKLR
Jurisdiction invoked
Costs jurisdiction under section 27(1) of the Civil Procedure Act

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, "Dickson Muoki Mutuku & 2 others v James Mutuku Kimeu & 13 others [2021] KEELC 1653 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1653/eng@2021-10-12

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