Buluma v Wanyama & 2 others (Enviromental and Land Originating Summons E002 of 2020) [2024] KEELC 7334 (KLR)
The bottom line
#A Kenyan court ruled that defendants dropped from a withdrawn land suit deserve their costs, even though they subdivided the disputed land while the case was pending.
What this practically means
#Executive summary
#Key legal issues
#Whether a defendant against whom a suit is withdrawn is entitled to costs
The 2nd and 3rd Defendants who had filed responses before the amendment and against whom the suit was withdrawn at the hearing stage were entitled to costs; the plaintiff's sub-division argument did not displace their right to costs.
Section 27(1) of the Civil Procedure Act vests discretion over costs in the court, with costs following the event unless good reason is shown. Order 25 Rule 2 permits withdrawal upon terms as to costs that are just. The sub-division occurred because the plaintiff's injunction application had been dismissed by Omollo J, leaving the Defendants free to utilise the land. Denying costs would be unfair and an injustice since the Defendants had already filed responses to the Originating Summons before the amendment.
Legal principles established
#- Costs of and incidental to all suits are at the discretion of the Court or judge and follow the event unless the Court for good reason otherwise orders
- The award of costs is guided by the principle that costs follow the event, but this is not an invariable rule; the ultimate factor is the judicially-exercised discretion of the Court
Court orders
#- 1.The 2nd and 3rd Defendants are awarded costs of the withdrawn suit against them, agreed or taxed
- Jurisdiction invoked
- Section 27(1) of the Civil Procedure Act and Order 25 Rule 2 of the Civil Procedure Rules (discretion as to costs)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Buluma v Wanyama & 2 others (Enviromental and Land Originating Summons E002 of 2020) [2024] KEELC 7334 (KLR)", Case Analysis (2024). Originating Summons dated 17th September 2020 (Bunyala/Mudembi/1195). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7334/eng@2024-11-06
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