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ELCOther· [2022] KEELC 2613 (KLR)

Kimathi & 2 others v General & 3 others (Environment & Land Case E006 of 2021) [2022] KEELC 2613 (KLR)

Environment and Land Court
20 July 2022
CNC.K. NZILI
565 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court allowed a suit's withdrawal and refused costs to the interested party, making each side pay its own legal expenses.

What this practically means

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Executive summary

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By a notice of motion dated March 25, 2022, the plaintiffs sought to withdraw the suit with effect from March 28, 2022. When the application came up on May 16, 2022, counsel for the 3rd defendant indicated no objection to the withdrawal, subject to payment of costs. Plaintiffs' counsel, Miss Gikundi, urged that the plaintiffs had initially acted in person and should not be penalised for ignorance of the law. The court allowed the withdrawal and deferred a ruling on costs. Procedurally, the 3rd defendant had, by application dated September 26, 2021, sought joinder as an interested party, which was allowed by a ruling dated January 26, 2022, after which the plaint was amended and summons issued on March 4, 2022; the 3rd defendant had earlier filed a defence dated December 20, 2021, while the 1st and 2nd defendants had only filed a preliminary objection which the court determined. On costs, the court stated the general principle under Section 27 of the Civil Procedure Act that costs follow the event, citing authority that the principle compensates rather than penalises, and that good reasons for departure include public interest, the circumstances of the case, the conduct of the parties, and the need to promote reconciliation. Applying these principles, the court found good reasons to depart from the general rule: no party had been successful since the suit was only withdrawn; it was the 3rd defendant/interested party that had sought to be enjoined; the plaintiffs had not served summons on it; and the plaintiffs had acted in person out of ignorance of the law. The court ordered that each party bear its own costs.

Key legal issues

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Whether costs should be awarded to the 3rd defendant/interested party upon withdrawal of the suit

Holding

Good reasons existed to depart from the general rule that costs follow the event; each party was ordered to bear its own costs

Reasoning

Section 27 of the Civil Procedure Act provides that costs follow the event, but courts may depart for good reasons. Here no party was successful since the suit was merely withdrawn. The 3rd defendant had itself sought joinder as interested party, the plaintiffs had not served summons on it, and the plaintiffs had acted in person out of ignorance of the law. The court applied the factors from the cited authorities and ordered each party to bear its own costs.

p. 2

Legal principles established

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  • Costs follow the event under Section 27 of the Civil Procedure Act, but the court may depart from that rule for good reasons including public interest and the circumstances of the case
  • The costs-follow-the-event principle compensates a successful party rather than penalising the losing party

Court orders

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  1. 1.Withdrawal of the suit allowed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure ActSection 27

Cases cited (3)

  • Republic vs Rosemary Wairimu Munene (exparte applicant) Ihururu Dairy Farmers Cooperative Society Ltd
    (2014) eKLR
  • Jasbir Singh Rai & 3 others vs Tarlochan Rai & 4 others
    (2014) eKLR
  • Cecilia Karuru Nganga vs Barclays Bank & another
    (2016) eKLR
Jurisdiction invoked
Inherent jurisdiction over costs under Section 27 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, "Kimathi & 2 others v General & 3 others (Environment & Land Case E006 of 2021) [2022] KEELC 2613 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2613/eng@2022-07-20

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