Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherNot stated in the extract· [2021] KEELC 2510 (KLR)

Silas Mburunga Mathiu & another v Mathiu Mugane [2021] KEELC 2510 (KLR)

Environment and Land Court
21 July 2021
LMLucy N. Mbugua
423 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court let family members in a land dispute walk away without costs after a mutually consented withdrawal of an application.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Meru (Hon. Lucy N. Mbugua, ELC Judge) deals only with costs following the withdrawal of a notice of motion dated 13/5/2019 in which the plaintiffs sought an order for resurvey of land parcels Abithuguchi/Kariene/3213 and 3214. Before the application could be heard, the plaintiffs withdrew it as overtaken by events. The defendant sought costs, arguing that costs follow the event and that the plaintiffs had dragged him through court for over a decade, including filing the now-withdrawn application; he relied on Party of Independent Candidate of Kenya v Mutula Kilonzo & 2 Others. The plaintiffs opposed, characterising the dispute as a family matter between brothers and sisters and asserting that the demolition of the plaintiffs' house had been done by mutual consent - an averment the defendant's counsel did not dispute. The court, guided by section 27 of the Civil Procedure Act, acknowledged the normal rule that withdrawal amounts to a determination in favour of the defendant and ordinarily attracts costs against the withdrawing party. However, exercising its discretion, it declined to award costs because the withdrawal resulted from events consented to by both parties and the parties remain family members. The final order, delivered via email on 21 July 2021, was that each party pays their own costs of the application.

Key legal issues

#
01

Whether costs should follow the event upon withdrawal of an application

Holding

Costs were not awarded; discretion exercised in favour of each party bearing own costs

Reasoning

The court considered section 27 of the Civil Procedure Act. Although withdrawal normally attracts costs against the withdrawing party, here the application was overtaken by events: the demolition of the plaintiffs' house was done by mutual consent, an averment the defendant did not dispute. The parties are also still family members. The court therefore exercised its discretion to order each party to bear their own costs of the application.

p. 2

Legal principles established

#
  • Withdrawal of proceedings ordinarily amounts to a determination in favour of the defendant, and the withdrawing party is liable to pay costs, but the court retains discretion under section 27 of the Civil Procedure Act to depart from that position

Court orders

#
  1. 1.Each party to pay their own costs of the application
Jurisdiction invoked
Section 27 of the Civil Procedure Act (discretion to award costs)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Silas Mburunga Mathiu & another v Mathiu Mugane [2021] KEELC 2510 (KLR)", Case Analysis (2021). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2510/eng@2021-07-21

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