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ELCOtherNot stated in the judgment excerpt· [2023] KEELC 512 (KLR)

Ukulima Co-operative Savings & Credit Ltd v Populite International Limited (Environment & Land Case 1023 of 2014 & 305 of 2015 (Consolidated)) [2023] KEELC 512 (KLR)

Environment and Land Court
26 January 2023
LMLucy N. Mbugua
381 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court refused a law firm's costs claim because it couldn't prove it had formally taken over the case record.

What this practically means

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Executive summary

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This costs ruling arises from an application dated March 3, 2022 filed by Njuguna and Partners, advocates for the defendant, after judgment was delivered in the main suit on February 2, 2022. The law firm sought orders directing that all payments due from the plaintiff to the defendant under the judgment be deposited with them or in court, claiming the client had instructed Midega & Co Advocates to frustrate recovery of their fees. When the application came up for hearing on May 19, 2022, the applicant withdrew it and asked for no order as to costs; the plaintiff did not object. Midega & Co Advocates, though not objecting to the withdrawal, sought costs on the ground that they had been served and had filed a replying affidavit sworn on March 26, 2022. The court, citing Baridi Felix Mbevo v Musee Mati & 2 others [2021] eKLR on the discretionary nature of costs, examined the digital CTS file and found no replying affidavit on record, and no evidence that Midega & Co were properly on record under Order 9 rule 9 of the Civil Procedure Rules. Noting also that the application had been withdrawn speedily after filing, the court directed that each party bear their own costs of the application dated March 3, 2022. The ruling was delivered at Nairobi on January 26, 2023 by Lucy N. Mbugua, Judge.

Key legal issues

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Costs of a withdrawn application

Holding

Costs of a withdrawn application are discretionary; given the speedy withdrawal and the absence of a replying affidavit or proof that Midega & Co were properly on record, each party was to bear its own costs

Reasoning

The court applied the principle that costs awards are governed by judicial discretion. It examined the digital CTS file and found no replying affidavit sworn on March 26, 2022 as claimed by Midega & Co Advocates, and no evidence of the firm being properly on record under Order 9 rule 9 CPR. It also noted the application was withdrawn speedily after filing, with the plaintiff not objecting to no order as to costs.

p. 2

Legal principles established

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  • The award or non-award of costs is a matter of judicial discretion

Court orders

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  1. 1.Each party to bear their own costs in respect of the application dated March 3, 2022

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 rule 9

Cases cited (1)

  • Baridi Felix Mbevo v Musee Mati & 2 others
    [2021] eKLR
Jurisdiction invoked
Inherent costs jurisdiction under the Civil Procedure Act and Civil Procedure Rules (Order 9 rule 9 referenced)

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, "Ukulima Co-operative Savings & Credit Ltd v Populite International Limited (Environment & Land Case 1023 of 2014 & 305 of 2015 (Consolidated)) [2023] KEELC 512 (KLR)", Case Analysis (2023). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/512/eng@2023-01-26

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