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ELCDismissed· [2022] KEELC 718 (KLR)

Esther Jerotich Rotich & another v Sidian Bank Ltd [Formerly K-Rep Bank Ltd] [2022] KEELC 718 (KLR)

Environment and Land Court
23 March 2022
SKS. M. Kibunja
607 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan defendant cannot claim costs for a withdrawn suit unless a written notice of withdrawal has actually been filed and served.

What this practically means

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Executive summary

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This Environment and Land Court decision at Eldoret arises from a suit filed by plaint on 7th July 2016, in which the plaintiffs sought a declaration that a statutory notice dated 23rd March 2016 was not properly served, and an account of loan payments. The defendant opposed the claim. The dispute before the court concerned the defendant's pursuit of costs and interest via a letter dated 8th December 2018, following a Bill of Costs dated 26th February 2019 that the Deputy Registrar had, in a ruling of 4th March 2020, found premature. The Deputy Registrar had noted that no order as to costs existed, no notice of withdrawal of the suit was on file, and no endorsement of withdrawal appeared on the proceedings, per Order 25 Rule 3 of the Civil Procedure Rules. Justice S. M. Kibunja reviewed the entire record and the parties' submissions. The court noted the Deputy Registrar's letter of 20th February 2019 confirming that no Notice of Withdrawal was filed and that judgment for costs could not be entered. The court restated that withdrawal under Order 25 Rule 1 must be in writing and served on all parties, and that under Order 25 Rule 3 a defendant may obtain judgment for costs of a wholly discontinued suit. Since no notice of withdrawal, whether whole or partial, had ever been filed, and the Deputy Registrar's unchallenged findings stood, the defendant's bid for costs was held to be without basis: the suit remains pending and the Bill of Costs was filed before its determination. The court upheld the Deputy Registrar's ruling of 4th March 2020 on costs and ordered accordingly.

Key legal issues

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01

Whether the suit had been withdrawn so as to entitle the Defendant to costs under Order 25 Rule 3

Holding

The court held there was no withdrawal of the suit, wholly or in part, and therefore no basis for an award of costs to the Defendant; the Bill of Costs was premature and the Deputy Registrar's ruling to that effect was upheld.

Reasoning

The Deputy Registrar had found on 4th March 2020 that no order as to costs existed and that no notice of withdrawal was on record or endorsed on the proceedings. A letter of 20th February 2019 from the Deputy Registrar similarly confirmed no Notice of Withdrawal was filed, so judgment for costs could not be entered. Those findings remained unchallenged. Absent any subsequent notice of withdrawal, the suit remained pending, and the Defendant's premature Bill of Costs could not sustain an order for costs.

p. 1

Legal principles established

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  • A defendant is entitled to judgment for costs of a wholly discontinued suit only upon a valid written notice of withdrawal filed and served, per Order 25 Rules 1 and 3 of the Civil Procedure Rules
  • A Bill of Costs filed before the suit is determined or withdrawn is premature

Court orders

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  1. 1.The court upheld the Deputy Registrar's ruling of 4th March 2020 on the question of costs
  2. 2.The Defendant's application for costs and interest by letter dated 8th December 2018 was found to be without basis and rejected

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 25 Rule 3
  • Civil Procedure Rules, 2010Order 25 Rule 1
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the pending suit and its costs

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, "Esther Jerotich Rotich & another v Sidian Bank Ltd [Formerly K-Rep Bank Ltd] [2022] KEELC 718 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/718/eng@2022-03-23

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