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ELCOther· [2024] KEELC 5684 (KLR)

Kitheka & 2 others v Kenya National Highways Authority & another (Environment and Land Appeal 38 of 2021) [2024] KEELC 5684 (KLR)

Environment and Land Court
22 July 2024
LKL. G. Kimani
3,325 words in judgment
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The bottom line

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A Kenyan court refused to award Kenya Power KSh 3.6 million in costs after a landowner withdrew their case by consent, ordering each side to pay its own costs.

What this practically means

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Executive summary

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The Plaintiffs sued the Defendants over compulsory acquisition of their properties (Kyangwithya/Tungutu/2191 and 2268) for the Kibwezi-Mutomo-Kitui-Kabati-Migwani Road, alleging undervaluation and seeking a permanent injunction, declarations of illegality, or damages. They filed a notice of withdrawal against the 1st, 3rd, 4th and 5th defendants; by consent on 17th October 2023 the suit was withdrawn against the 3rd, 4th and 5th defendants, with the issue of the 5th defendant's costs left to the court after negotiations failed. The 5th defendant (Kenya Power and Lighting Company) filed a bill of costs of Kshs 3,591,195.94, relying on Order 25 of the Civil Procedure Rules, section 27 of the Civil Procedure Act, and authorities on costs following the event, arguing it incurred expenses defending the suit. The Plaintiffs argued the withdrawal was by consent at the company's own request, that no party succeeded on the merits, and that each party should bear its own costs given the public-interest context and Article 48 access to justice. The court held that since the suit had been set down and partially heard, Order 25 rule 2(2) applied, requiring leave on terms as to costs. Exercising discretion under section 27 and the criteria in DGM v EWG and Morgan Air Cargo, the court noted the 5th defendant was joined in good faith, the properties were already in public use rendering the injunction otiose, and withdrawal occurred at the outset of the hearing. It directed that the Plaintiffs and the 5th defendant each bear their own costs of the suit. Delivered at Kitui on 22nd July 2024 by L. G. Kimani J.

Key legal issues

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01

Applicable regime for withdrawal of a suit already set down for hearing

Holding

Because the suit had been set down and partially heard, Order 25 rule 2(2) applied and withdrawal required leave of the court with terms as to costs

Reasoning

The court traced the three scenarios in Order 25 as explained by the Court of Appeal in Beijing Industrial Designing & Research Institute v Lagoon Development Ltd: withdrawal before setting down by notice, withdrawal after setting down by written consent of all parties, and withdrawal after setting down without consent only by leave of the court on just terms. Since the hearing had begun on 4th May 2023, the leave regime applied.

p. 4
02

Whether the Plaintiffs should pay the 5th defendant's costs upon consensual withdrawal

Holding

No; each party to bear its own costs. The 5th defendant was joined in good faith and the withdrawal was consensual and early in the hearing

Reasoning

The court applied the discretionary criteria summarised in DGM v EWG (conduct of parties, subject of litigation, stage and manner of termination, need for reconciliation under Article 159(2)(c)) and Morgan Air Cargo, which held consent settlement is not an automatic disentitlement to costs but a factor. Noting the land had been acquired before compensation, the joinder in good faith, counsel's late entry, and withdrawal at the start of the hearing, the court declined to burden the Plaintiffs with costs.

p. 6

Legal principles established

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  • Where a suit has been set down for hearing and no written consent of all parties to discontinuance exists, the plaintiff must obtain leave of the court to withdraw, on such terms as to costs as are just
  • Costs follow the event but the award of costs is discretionary and must be exercised reasonably in light of the circumstances of each case

Court orders

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  1. 1.Leave for withdrawal of the suit against the 5th defendant by consent is recognised
  2. 2.Each of the Plaintiffs and the 5th defendant to pay their own respective costs of the suit

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 25 rule 1; Order 25 rule 2; Order 25 rule 3
  • Civil Procedure Actsection 27
  • Constitution of Kenya (2010)Article 40(3)(b)(ii); Article 48; Article 159; Article 159(2)(c)
  • Civil Procedure Rules, 2010Order 1 Rule 3

Cases cited (9)

  • Beijing Industrial Designing & Research Institute v Lagoon Development Ltd
    [2015] eKLR
  • Party of Independent Candidate of Kenya & another v Mutula Kilonzo & 2 others
    (2013) eKLR
  • Levben Products v Alexander Films (SA) (PTY) Ltd
    1957 (4) SA 225 (SR)
  • Republic v Kenya Ports Authority ex-parte Grain Bulk Handlers Limited & Coast Silos Limited
    (2015) eKLR
  • Jasbir Singh Rai & 3 others v Tarcholan Singh Rai & 4 others
    (2014) eKLR
  • DGM v EWG
    [2021] eKLR
  • Morgan Air Cargo Limited v Everest Enterprises Limited
    [2014] eKLR
  • Reid, Hewitt & Co v Joseph
    AIR 1918 Cal 717
  • Myres v Defries
    (1880) 5 Ex D 180
Jurisdiction invoked
Order 25 rule 2(2) of the Civil Procedure Rules, 2010 and section 27 of the Civil Procedure Act (discretion on costs upon leave to withdraw suit set down for hearing)

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, "Kitheka & 2 others v Kenya National Highways Authority & another (Environment and Land Appeal 38 of 2021) [2024] KEELC 5684 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5684/eng@2024-07-22

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