Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherEnvironment & Land Case 248 of 2019· [2023] KEELC 21873 (KLR)

Kenya Commercial Bank & another (Suing as the Executor of the Estate of Simon Hongo Ominde (Deceased) v Muiruri t/a Leakeys Auctioneers & 6 others

Environment and Land Court
21 November 2023
LMLUCY N. MBUGUA
818 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

Withdrawing a court case in Kenya doesn't spare you from paying the other side's legal costs if your delay forced them to defend for years.

What this practically means

#

Executive summary

#
The plaintiffs, executors of the estate of Simon Hongo Ominde (deceased), had sued seven defendants over land known as LR No. 13400 (I.R No. 39372) registered in the deceased's name, seeking to restrain dealings with it. By an application dated 19 October 2023 they sought to withdraw the suit with no orders as to costs. The 2nd defendant, Equity Bank Kenya Limited, did not object to the withdrawal but sought costs. The 1st and 5th to 7th defendants raised no objection; the suit against the 3rd and 4th defendants had already been dismissed on 9 December 2021 for the plaintiffs' failure to comply with directions on service. The plaintiffs argued there was no successful party since the suit property had been sold to third parties on 20 September 2021, rendering the suit nugatory, and relied on Jasbir Singh Rai and the Ihururu Dairy Farmers case. The 2nd defendant countered that it had dutifully defended the suit for four years, filing a defence and trial bundle, while the plaintiffs were indolent, failed to comply with directions and were never ready to proceed. The court, applying section 27 of the Civil Procedure Act and Morgan Air Cargo, held that costs are discretionary and follow the event. Noting the plaintiffs' two-year delay after the property was sold before withdrawing, the court allowed the withdrawal but awarded the costs of the suit to the 2nd defendant against the plaintiffs.

Key legal issues

#
01

Award of costs upon withdrawal of a suit

Holding

Even where a suit is withdrawn, the court may award costs to a defendant who actively defended, where the plaintiff's indolence caused the proceedings

Reasoning

The court exercised its discretion under section 27 of the Civil Procedure Act. It found the 2nd defendant had dutifully defended the suit for four years, filing a defence and trial bundle, while the plaintiffs became indolent after obtaining an injunction, failed to comply with directions, and delayed two years after the suit property was sold before withdrawing. Costs follow the event.

p. 2

Legal principles established

#
  • Costs are a discretionary award given to a successful party under section 27 of the Civil Procedure Act

Court orders

#
  1. 1.Leave for the plaintiffs to withdraw the suit
  2. 2.Costs of the suit awarded to the 2nd defendant as against the plaintiffs

Authorities

#

Legislation

  • Civil Procedure Actsection 27

Cases cited (6)

  • Jasbir Singh Rai & others v Tarlochan Rai & Others
    [2014] eKLR

    Plaintiffs cited it to support that each party should bear own costs where there is no successful party

  • Republic v Rosemary Wairimu Munene, Ex-Parte Applicant v Ihururu Dairy Farmers Cooperative Society Ltd
    Judicial Review Application No. 6 of 2014

    Plaintiffs cited it on costs where there is no successful party

  • Morgan Air Cargo Limited v Evrest Enterprises Limited
    [2014] eKLR

    That costs are a discretionary award to a successful party under section 27 of the Civil Procedure Act

  • Samson K.A. Tim vs. Machange

    Cited by the 2nd defendant on costs

  • Robert Shaw & 2 others vs. Director General NEMA & 2 others
    (2022) eKLR

    Cited by the 2nd defendant on costs

  • Pacis Insurance Company Limited vs. Francis Njeru Njoka
    [2018] eKLR

    Cited by the 2nd defendant on costs

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land LR No. 13400 (I.R No. 39372)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Commercial Bank & another (Suing as the Executor of the Estate of Simon Hongo Ominde (Deceased) v Muiruri t/a Leakeys Auctioneers & 6 others", Case Analysis (2023). Environment & Land Case 248 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21873/eng@2023-11-21

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