Ahmed v Shariff Forex Bureau Co Ltd (Environment & Land Case 497 of 2018) [2024] KEELC 6683 (KLR)
The bottom line
#Once a Kenyan court allows a suit to be withdrawn on set terms, it cannot be asked again to award costs of that suit.
What this practically means
#Executive summary
#Key legal issues
#Functus officio after withdrawal of suit
Having allowed withdrawal of the suit with no orders as to costs, the court had performed all its duties and became functus officio; it could not entertain a fresh claim for costs of the suit
The suit had been set down for hearing, so the third scenario in Beijing Industrial applied: withdrawal required leave of the court on terms. The court granted leave in line with the withdrawal notice, i.e. without costs. Costs were thus already determined. Once the decision was given, the doctrine of functus officio bars the same court from revisiting it, subject only to appeal or the recognised exceptions, none of which applied here.
Discretion on costs
Costs follow the event but remain at the court's discretion under Section 27 of the Civil Procedure Act; the court had exercised that discretion by allowing withdrawal without costs
Relying on Kuloba's Judicial Hints on Civil Procedure and Section 27 of the Civil Procedure Act, the court reaffirmed that costs are discretionary, not automatic. The order allowing withdrawal with no orders as to costs was itself the exercise of that discretion on costs, so the Defendant's invitation to award costs would amount to revisiting a completed discretion.
Effect of earlier costs order for the injunction application
The dismissal of the application does not disturb the earlier award of costs of the Notice of Motion dated 19th November 2018
While the court could not award costs of the withdrawn main suit, it clarified that the separate, previously granted costs of the temporary injunction application remained intact and could be taxed by the Defendant. This preserves the distinction between costs already adjudicated and costs of the suit itself.
Service of notice of withdrawal under Order 25 Rule 1
Although the Defendant alleged breach of the service requirement, the court found the withdrawal had been endorsed by the court after considering it on merit, rendering the withdrawal a final order
The Defendant argued the notice of withdrawal was never served, breaching Order 25 Rule 1 and denying it a chance to plead costs. The Plaintiff countered that the notice was endorsed by Justice Obaga as a final order. The court treated the endorsement as a grant of leave on terms, which resolved the costs issue conclusively and triggered functus officio rather than remitting the costs question.
Legal principles established
#- A plaintiff has an absolute right to withdraw a suit before it is set down for hearing, but where the suit is set down for hearing, leave of the court on terms as to costs is required
- Where the court grants leave to withdraw a suit on stated terms, it has pronounced itself on costs and becomes functus officio
- Award of costs is a matter of judicial discretion, not a right
Court orders
#- 1.The Defendant's application dated 15th March 2024 is dismissed with costs to the Plaintiff/Respondent
- 2.Clarification that the earlier order granting the Defendant costs of the Notice of Motion dated 19th November 2018 is unaffected; the Defendant may tax costs for that application only
- Jurisdiction invoked
- Inherent jurisdiction under the Civil Procedure Act and Civil Procedure Rules (Order 25) over costs following withdrawal of a withdrawn suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ahmed v Shariff Forex Bureau Co Ltd (Environment & Land Case 497 of 2018) [2024] KEELC 6683 (KLR)", Case Analysis (2024). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6683/eng@2024-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.