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ELCOtherNot stated in the judgment (suit accompanied Thika ELCA No E076 of 2023)· [2024] KEELC 1555 (KLR)

Kago & 2 others v Mwangi & 2 others (Environment and Land Case E087 of 2023) [2024] KEELC 1555 (KLR)

Environment and Land Court
11 March 2024
1,936 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to award costs against plaintiffs who quickly withdrew a duplicate land suit once they learned an appeal was already running.

What this practically means

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Executive summary

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This suit was withdrawn on 31/1/2024 following a notice of withdrawal filed by the plaintiffs, but the court reserved the question of costs for determination on affidavit evidence and written submissions. This judgment resolves that single issue. The plaintiffs, through Francis Githuthwa Kago's affidavit, explained that they filed the suit on 15/12/2023 seeking interlocutory injunctive orders, unaware that the defendants had on the same day filed an appeal (Thika ELCA No E076 of 2023) challenging a decision of the Kiambu County Physical and Land Use Planning Liaison Committee. Upon learning of the appeal, they withdrew the suit to allow the appeal to proceed. The defendants, through David Maina Mwangi's affidavit, contended that the withdrawal was prompted by the strength of their defence, that the plaintiffs' suit was an abuse of process, and that they had incurred legal fees entitling them to costs. The court applied Section 27 of the Civil Procedure Act, which makes costs discretionary and generally following the event, guided by the Supreme Court's decision in Jasbir Singh Rai and the factors in Morgan Air Cargo. The court found the plaintiffs were unaware of the appeal when they filed the suit and withdrew promptly upon service of the appeal papers, justifying departure from the general rule. The defendants failed to prove the alleged earlier service of the memorandum of appeal. The suit was marked withdrawn with no order as to costs. Judgment was delivered virtually at Thika on 11 March 2024.

Key legal issues

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01

Whether the defendants should be awarded costs of a suit withdrawn without notice

Holding

No order as to costs; departure from the costs-follow-the-event principle justified

Reasoning

Section 27 of the Civil Procedure Act makes costs discretionary and generally following the event, subject to good reason otherwise. The evidence showed the plaintiffs filed this suit unaware of the defendants' appeal against the Liaison Committee decision. On being served with the appeal papers they promptly withdrew the suit to let the appeal proceed. The defendants failed to prove the plaintiffs knew of the appeal when filing, so the conduct did not warrant an award of costs.

02

Burden of justifying an award of costs on withdrawal

Holding

The party seeking costs bears the evidential burden of showing circumstances warranting departure from a no-costs outcome

Reasoning

The court noted it would have taken a different view had the defendants demonstrated that the plaintiffs were aware of the appeal yet still initiated the suit. The defendants' claim of service on 14/12/2023 was unsupported by evidence; only an email of 18/12/2023 was exhibited. Absent such proof, the plaintiffs' withdrawal was a legitimate response to parallel proceedings.

p. 4

Legal principles established

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  • Jurisdiction to award costs is discretionary and must be exercised judiciously, not arbitrarily, in accordance with reason and justice
  • Costs follow the event under Section 27 of the Civil Procedure Act, but the court may depart from that principle for good reason
  • A plaintiff who files suit unaware of a parallel appeal and promptly withdraws upon learning of it should not be mulcted with costs

Court orders

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  1. 1.Suit marked 'withdrawn with no order as to costs'
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; costs determination under Section 27 of the Civil Procedure Act

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, "Kago & 2 others v Mwangi & 2 others (Environment and Land Case E087 of 2023) [2024] KEELC 1555 (KLR)", Case Analysis (2024). Not stated in the judgment (suit accompanied Thika ELCA No E076 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1555/eng@2024-03-11

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