Nkoroi v Karigu (Legal Representative of The Estate of M’Rutere M’Magana (Deceased) & another (Environment & Land Case 82 of 2005) [2022] KEELC 3847 (KLR)
The bottom line
#A Kenyan land plaintiff who sued a non-owner and later withdrew was ordered to pay her costs, as courts usually award costs to the winning side.
What this practically means
#Executive summary
#Key legal issues
#Whether costs should follow the event on withdrawal of the suit
The court awarded costs to the 1st defendant, declining to depart from the general rule under section 27 of the Civil Procedure Act because the 1st defendant had been prejudiced by the pendency of the suit.
The plaintiff knew from the outset that the 1st defendant was not the registered owner of the suit land, yet maintained the suit against her from 2005 despite a clear averment to that effect. The suit against the true registered owner (2nd defendant) had abated on death, and the 1st defendant had suffered prejudice, expenses and costs. No good reason existed to deviate from the rule that costs follow the event.
Whether leave to withdraw the suit should be granted
Leave to withdraw was granted; the suit was marked as withdrawn.
Counsel for the plaintiff sought withdrawal because the suit against the registered owner (2nd defendant) had abated following his death, and the prayers in the plaint could not be granted without the participation of his legal representative. The 1st defendant did not oppose the withdrawal but sought costs.
Legal principles established
#- Costs of and incidental to all suits are in the discretion of the court, but costs follow the event unless the court for good reason orders otherwise.
- A plaintiff who sues a party known not to be the registered owner of the suit land and persists in sustaining the suit risks being denied departure from the normal costs rule.
Court orders
#- 1.The suit is marked as withdrawn
- 2.Costs of the suit awarded to the 1st defendant only
- Jurisdiction invoked
- Civil Procedure Act, section 27 (costs); first-instance suit before the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nkoroi v Karigu (Legal Representative of The Estate of M’Rutere M’Magana (Deceased) & another (Environment & Land Case 82 of 2005) [2022] KEELC 3847 (KLR)", Case Analysis (2022). Meru Originating Summons dated August 29, 2005 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3847/eng@2022-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.