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ELCAllowedNot stated in the judgment· [2024] KEELC 486 (KLR)

Bentley v Isaac & another (Environment & Land Case E004 of 2022) [2024] KEELC 486 (KLR)

Not stated (delivered at Nakuru; land-related originating summons previously determined)
7 February 2024
AOA O Ombwayo
384 words in judgment
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The bottom line

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A Nakuru court removed a costs order against an advocate who never actively took part in the case, since nobody would be prejudiced.

What this practically means

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Executive summary

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Cheptumo & Co. Advocates applied to the court at Nakuru seeking review of the orders on costs issued on 12th October 2023, in which the court had ordered the 1st defendant to vacate the property, the plaintiff to refund the purchase price less 20%, and the 2nd defendant (the applicant) to release the title deed to the plaintiff, with costs awarded to the plaintiff. The applicant had not actively participated in the hearing of the originating summons; in its response it confirmed having acted for both parties in the transaction, denied any vested interest or conflict, and stated its willingness to release the original title deed in accordance with the court's orders. The plaintiff's advocates were in the process of demanding the costs awarded. The supporting affidavit was sworn by the advocate for the 2nd defendant. The application was not opposed. The court, per A O Ombwayo J, found that the respondents would not be prejudiced if the judgment were reviewed and costs were not awarded, and that the 2nd defendant had not actively participated in the suit. The court reviewed the judgment of 12th October 2023 so as to award no costs against the 2nd defendant, and made no order as to costs in the application. The ruling was dated, signed and delivered virtually at Nakuru on 7th February 2024.

Key legal issues

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01

Whether costs should apply to a party that did not actively participate in the suit

Holding

The court reviewed the judgment so that no costs were awarded against the 2nd defendant, who had not actively participated in the originating summons and against whom no prejudice would be caused to the respondents.

Reasoning

The applicant, an advocate who had acted for both parties in the underlying transaction and held the original title deed, was described as the 2nd defendant. It did not actively participate in the hearing of the originating summons and had confirmed willingness to release the title deed per the court's orders. The application was unopposed, and the court found the respondents would suffer no prejudice if costs were not awarded against the applicant.

p. 2

Legal principles established

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  • Where a party did not actively participate in a suit and no prejudice would be suffered by the other parties, a costs award against that non-participating party may be reviewed.

Court orders

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  1. 1.The judgment of 12th October 2023 is reviewed with respect to costs
  2. 2.No costs awarded against the 2nd defendant
  3. 3.No order as to costs in the application
Jurisdiction invoked
Review of the court's own judgment on costs (inherent review jurisdiction; specific provision not cited in the judgment)

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, "Bentley v Isaac & another (Environment & Land Case E004 of 2022) [2024] KEELC 486 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/486/eng@2024-02-07

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