Lilian Chepkorir Lelei v Richard Kipchirchir Nyango [2022] KEELC 233 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the defendant established a ground for review under section 80 CPA and Order 45 rule 1
Yes - the ground of 'any other sufficient reason' applied because the defendant was denied a hearing on costs.
The defendant had actively defended the suit through counsel but neither the notice of withdrawal nor the notice to show cause had been served on his counsel. He therefore had no opportunity to address the court on costs before the order marking the suit withdrawn with no order as to costs was made. Review under 'any other sufficient reason' was warranted to remedy this hardship, the application having been made without unreasonable delay and no appeal having been preferred.
Whether costs should follow the event upon withdrawal of the suit
Yes - costs were awarded to the defendant as the plaintiff gave no good reason to depart from the general rule.
Section 27 of the Civil Procedure Act carries the proviso that costs shall follow the event unless the court for good reasons otherwise orders. The plaintiff gave no good cause in the notice of withdrawal why costs should not follow the event, and the defendant had incurred expenses, including advocates' fees, in defending the suit before it was withdrawn.
Relevance of sections 26, 3 and 3A of the Civil Procedure Act cited in the application
Their relevance was not apparent.
The heading of the application cited section 26 (which provides for interest), sections 3 and 3A (special jurisdiction and inherent powers) and Order 45. The court found the relevance of sections 26, 3 and 3A to the application not apparent, resting instead on section 80 and Order 45 which govern review.
Legal principles established
#- A party who actively defends a suit is entitled to costs upon withdrawal of the suit, and must be given an opportunity to be heard on costs before an order of withdrawal with no order as to costs is made.
- The 'any other sufficient reason' ground of review is not restricted to grounds analogous with the other enumerated grounds.
Court orders
#- 1.The defendant's Notice of Motion dated 12th April 2021 is allowed
- 2.The order of 2nd March 2021 issued on 16th March 2021 is reviewed so that the suit is marked as withdrawn with costs to the Defendant
- 3.The file is closed
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review), with sections 26, 27, 3 and 3A of the Civil Procedure Act cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lilian Chepkorir Lelei v Richard Kipchirchir Nyango [2022] KEELC 233 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/233/eng@2022-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.