Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOther· [2024] KEELC 1107 (KLR)

Kongoacheke Clan Community Based Organization (CBO Suing through Henry Mwenda) the Chairman v Ngera & another (Environment & Land Case E003 of 2023) [2024] KEELC 1107 (KLR)

Environment and Land Court
28 February 2024
CNCK Nzili
925 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to award costs in an abandoned land dispute because the parties never formally filed a withdrawal notice or settlement — file the paperwork or lose your case.

What this practically means

#

Executive summary

#
The suit was filed by plaint dated February 7, 2023 seeking an injunction against the setting up of a mortuary, funeral home, morgue or incinerator on L.R. Nos. Ntima/Ntakira/7534, 7404 and 7405 and revocation of any Environmental Impact Assessment licence issued by the 2nd defendant to the 1st defendant. By a ruling dated May 10, 2023, the court dismissed the 1st defendant's preliminary objection and issued interim injunctions against construction lasting one year. When the matter came up, the 1st defendant indicated he no longer wished to pursue the project and proposed that each party bear their own costs to promote reconciliation and good neighbourliness, relying on Haraf Traders Ltd and Okoiti. The plaintiff had earlier indicated no objection to withdrawal so long as costs were paid. The court found that no notice of withdrawal or abandonment under Order 25 of the Civil Procedure Rules and no consent had been filed, and that the plaintiff remained protected by interim orders. It therefore declined to pronounce on costs under Section 27 of the Civil Procedure Act, directed the parties to file any notice of withdrawal or settlement within 14 days, and ordered that in default the suit would stand dismissed for non-prosecution. No costs order was made.

Key legal issues

#
01

Whether the court may determine costs in the absence of a formal withdrawal or settlement

Holding

The court cannot pronounce on costs under Section 27 of the Civil Procedure Act where no notice of withdrawal under Order 25 or consent has been filed

Reasoning

The court noted that no formal withdrawal notice, no notice to abandon under Order 25 of the Civil Procedure Rules, and no consent settling the matter had been filed. The plaintiff was still enjoying interim orders. Since the mode of termination of the suit had not been formalised, the court had no procedural foundation upon which to exercise its discretion on costs.

p. 2
02

Costs where a project is abandoned early at the instance of neighbours

Holding

The court declined to decide the costs question, leaving it to be resolved once a withdrawal or settlement is filed

Reasoning

The 1st defendant argued that costs follow the event but the court has discretion considering party conduct, early abandonment, reconciliation, neighbourliness and public interest, relying on Haraf Traders Ltd and Okoiti. However, the court held it could not assess these factors before the suit was formally withdrawn, abandoned or compromised by consent.

p. 2

Legal principles established

#
  • A court cannot determine costs of a withdrawn or settled suit where no notice of withdrawal, abandonment or consent has been filed

Court orders

#
  1. 1.Parties directed to file any notice of withdrawal or settlement within 14 days from the date of the ruling
  2. 2.In default of filing such notice or settlement, the suit shall stand dismissed for non-prosecution

Authorities

#

Legislation

  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 11
  • Civil Procedure RulesOrder 25

Cases cited (2)

  • Haraf Traders Ltd v Narok County Government
    [2022] eKLR
  • Okoiti & 2 others v AG & others
    [2023] KESC 31 (KLR) (21st April 2023) Ruling
Jurisdiction invoked
Not expressly invoked; suit filed by plaint under the Civil Procedure Act and Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kongoacheke Clan Community Based Organization (CBO Suing through Henry Mwenda) the Chairman v Ngera & another (Environment & Land Case E003 of 2023) [2024] KEELC 1107 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1107/eng@2024-02-28

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