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ELCOtherNot stated in the judgment· [2022] KEELC 1993 (KLR)

Robert Shaw & 2 others v Director of General National Environment Management Authority & 2 others [2022] KEELC 1993 (KLR)

Environment and Land Court
17 January 2022
1,812 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Nairobi court ruled that people who withdraw a lawsuit usually pay the other side's legal costs, unless they can prove they genuinely sued for the public.

What this practically means

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Executive summary

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This Environment and Land Court ruling by E. K. Wabwoto J deals solely with costs following the plaintiffs' withdrawal of their suit, which had been filed by plaint dated 17th February 2020 against defendants including a 3rd Defendant sued in his personal capacity, seeking declarations including that an EIA report of 17th October 2017 was procedurally and unlawfully prepared and null and void. All parties except the 3rd Defendant agreed to withdrawal with no orders as to costs. The court directed written submissions on costs. The plaintiffs argued the suit was public interest litigation brought on behalf of the Windy Ridge Residents Association and Karen Langata District Association, and that no costs should be awarded in such matters, relying on several authorities. The 3rd Defendant countered that costs follow the event; he had been sued personally, had filed responses, a preliminary objection, voluminous documents, successfully defended two interim applications and complied with pre-trial directions before the withdrawal. The court held that under section 27 of the Civil Procedure Act costs are discretionary but ordinarily follow the event; the discretion must be exercised judiciously. Finding no authority to sue on behalf of the associations, the court held the public interest characterisation misleading. Awarding the 3rd Defendant costs but limiting them to the two defended applications, the court ordered the plaintiffs to pay those costs. Judgment delivered virtually at Nairobi on 17th January 2022.

Key legal issues

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01

Whether costs should be awarded to the 3rd Defendant upon withdrawal of the suit

Holding

Yes - costs awarded but limited to defending the two applications.

Reasoning

The court exercises its discretion under section 27 of the Civil Procedure Act. Although costs follow the event, the discretion must be exercised judiciously on the circumstances of each case. The 3rd Defendant, sued personally, had filed responses, a preliminary objection, defended two interim applications and complied with pre-trial directions before the withdrawal, thus incurring costs. The plaintiffs' public-interest characterisation was unsupported by any authority to sue on behalf of the associations, so no special costs considerations for public interest litigation applied.

p. 3
02

Whether the suit was a public interest litigation entitling plaintiffs to walk away without costs

Holding

No - the claim that the suit was brought on behalf of residents was misleading.

Reasoning

The plaintiffs contended the suit was public interest litigation on behalf of Windy Ridge Residents Association and Karen Langata District Association, arguing no costs should be awarded in such matters. However, on perusal of the pleadings the court found no authority or evidence that the plaintiffs were officials or members of the associations or authorised to sue on their behalf. The contention was therefore misleading, removing the basis for a public-interest costs exception.

p. 3

Legal principles established

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  • Costs of a suit are in the discretion of the court; costs follow the event unless the court for good reason otherwise orders
  • A party who withdraws a suit wholly must as a general rule pay the defendant's costs

Court orders

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  1. 1.Costs shall be paid by the Plaintiffs to the 3rd Defendant, limited only to costs for defending the two applications filed by the Plaintiffs

Authorities

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Legislation

  • Civil Procedure Actsection 27

Cases cited (10)

  • Republic v Independent Electoral and Boundaries Commission & 2 Others Exparte Alinoor Derow Abdullahi & Others
    [2017]
  • John Harun Mwau and 3 Others v Attorney General and 3 Others
    [2012] eKLR
  • Rufus Njuguna Miringu & Another v Martha Muriithi & 2 Others
    [2012] eKLR
  • Simon K.A Tim v D.M Machage
    (2019) eKLR
  • Truth Justice and Reconciliation Commission v Chief Justice of the Republic of Kenya
    [2012] eKLR
  • Okiya Omtatah v Communication Authority of Kenya & 14 Others
    [2015] eKLR
  • Cecilia Karuru Ngayu v Barclays Bank of Kenya & Another
    [2016] eKLR
  • Nicholas Kiptoo Arap Korir Salat
  • Hussein Janmohamed & Sons Vs. Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
  • Morgan Air Cargo Limited v Evrest Enterprises limited
    [2014] eKLR
Jurisdiction invoked
Section 27 of the Civil Procedure Act (discretion as to 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, "Robert Shaw & 2 others v Director of General National Environment Management Authority & 2 others [2022] KEELC 1993 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1993/eng@2022-01-17

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