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ELCOtherELC Case No. E006 of 2021 (Ruiru)· [2022] KEELC 3198 (KLR)

Real Capital Limited v Githina (Environment & Land Case 730 of 2017) [2022] KEELC 3198 (KLR)

Environment and Land Court
9 June 2022
GKGideon Gilbert Kemei
1,805 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered a company that withdrew its land lawsuit to pay the defendant's legal costs for filing suit despite knowing of an earlier case.

What this practically means

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Executive summary

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Real Capital Limited sued Evalyn Wanjiru Githina on 1 September 2017 seeking a perpetual injunction restraining her from dealing with land parcel Ruiru/Ruiru East Block 7/84 and her eviction, claiming to be the registered owner. The Defendant filed a defence and a preliminary objection pleading sub judice on account of Thika ELC Petition No. 8 of 2017, which concerned the cancellation of register entries, and sought stay of proceedings. In a judgment delivered on 17 June 2021 in that petition, the court found the Land Registrar's cancellation process unprocedural and contrary to fair administrative action, reinstating the previous entries, leaving two competing titles. The Plaintiff then withdrew this suit by notice of 3 September 2021 and, notably, filed a fresh suit (ELC E095 of 2021). The Defendant did not oppose the withdrawal but sought costs, which the Plaintiff opposed, asking that each party bear its own costs given the competing titles. The court framed a single issue: whether the Defendant's prayer for costs was merited. Relying on section 27(1) of the Civil Procedure Act and authorities on costs following the event, the court held that the Plaintiff filed suit fully aware of the pending petition, that the Defendant had raised sub judice from the outset, and that the Plaintiff's conduct occasioned avoidable litigation consuming judicial time and the Defendant's resources. This ruling is a costs decision on a withdrawn suit, not a determination of ownership; the substantive title dispute proceeds in ELC E095 of 2021.

Key legal issues

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01

Whether the Defendant is entitled to costs of the withdrawn suit

Holding

The Defendant was awarded costs because the Plaintiff filed suit while aware of the pending Petition No. 8 of 2017, thereby occasioning unnecessary litigation.

Reasoning

Section 27(1) makes costs discretionary and following the event. The Defendant had raised sub judice by preliminary objection and defence, yet the Plaintiff filed suit two months after the Petition was transferred and renumbered, fully aware of it. The judgment in the Petition defeated the substratum of the suit, prompting withdrawal. A withdrawing plaintiff's conduct led to litigation that could have been averted, and the Defendant expended money, time and effort defending it, warranting costs.

p. 4

Legal principles established

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  • A withdrawal of proceedings amounts to a determination in favour of the respondents, who are entitled to costs under section 27 of the Civil Procedure Act.
  • Costs follow the event and the award is discretionary, to be exercised for good reason otherwise.

Court orders

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  1. 1.The Defendant shall have the costs of the withdrawn suit.
  2. 2.The parties to agree on the costs payable to the Defendant within a period of 15 days in default the same shall be taxed by the Taxing Master of this Court.

Authorities

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Legislation

  • Civil Procedure ActSection 27(1)
  • Constitution of KenyaArticle 159(2)(c)

Cases cited (11)

  • Anthony Kago v Peter Gitau Kariuki & 3 Others
    [2021] eKLR
  • Pacis Insurance O. Ltd v Francis Njeru Njoka
    [2018] eKLR
  • Samson K.A v D.M Machage
    [2019] eKLR
  • PIL Kenya Ltd v Joseph Oppong
    [2009] eKLR
  • Supermarine Handling Services Ltd vs. Kenya Revenue Authority
    [2010] eKLR
  • Republic v Commissioner for Co-operative Development & another Ex parte Water Resources Management Authority
    [2018] eKLR
  • Devram Manji Daltani vs. Danda
    [1949] 16 EACA 35
  • Joseph Oduor Anode vs. Kenya Red Cross Society
    [2012] eKLR
  • Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others
    [2014] eKLR
  • Canyon Properties Limited & 3 Others v Eliud Kipchirchir Bett & 2 Others
    [2017] eKLR
  • Sabina Nyambura Githina & Anor. vs The Land Registrar Thika & 4 others (Thika ELC Petition No. 8 of 2017)
Jurisdiction invoked
Section 27(1) 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, "Real Capital Limited v Githina (Environment & Land Case 730 of 2017) [2022] KEELC 3198 (KLR)", Case Analysis (2022). ELC Case No. E006 of 2021 (Ruiru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3198/eng@2022-06-09

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