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ELCOtherMeru Originating Summons dated August 29, 2005 (number not stated in judgment)· [2022] KEELC 3847 (KLR)

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)

Environment and Land Court
27 July 2022
597 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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The Environment and Land Court at Meru (C.K. Nzili, ELC J) ruled on a plaintiff's application to withdraw an originating summons dated August 29, 2005. The suit, which had questioned alleged collusion between the defendants in Meru HCC No 224 of 1989 and sought cancellation of the 2nd defendant's registration as owner of LR No Igoji/Kinoro/590, could no longer proceed against the 2nd defendant, the registered owner, whose death caused the suit to abate. Counsel for the plaintiff (Miss Mbubuya) sought leave to withdraw the suit with no order as to costs, explaining that the plaintiff only learned of the 2nd defendant's death too late. Counsel for the 1st defendant (Mr Mburugu) did not oppose withdrawal but sought costs, citing prejudice, expenses and costs incurred since 2005. The court applied section 27 of the Civil Procedure Act and the principle that costs follow the event, relying on Jasbir Singh Rai and Gedion K Konchellah. It found the plaintiff knew from the outset that the 1st defendant was not the registered owner yet sustained the suit against her despite a clear averment to the contrary, causing obvious prejudice. The court declined to order each party to bear their own costs and instead awarded costs to the 1st defendant only. On July 27, 2022 the court marked the suit as withdrawn with costs to the 1st defendant only.

Key legal issues

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01

Whether costs should follow the event on withdrawal of the suit

Holding

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.

Reasoning

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.

p. 2
02

Whether leave to withdraw the suit should be granted

Holding

Leave to withdraw was granted; the suit was marked as withdrawn.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The suit is marked as withdrawn
  2. 2.Costs of the suit awarded to the 1st defendant only

Authorities

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Legislation

  • Civil Procedure ActSection 27

Cases cited (2)

  • Gedion K Konchellah vs Julius Sunkuli
    (2018) eKLR
  • Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others
    [2014] eKLR
Jurisdiction invoked
Civil Procedure Act, section 27 (costs); first-instance suit before the Environment and Land Court

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, "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.