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ELCOtherOriginating Summons dated June 29, 2015 (Busia)· [2024] KEELC 7375 (KLR)

Oluta (Substituted with Leonard Wafula Makhanu) v Nandieki & 3 others (Enviromental and Land Originating Summons 67 of 2015) [2024] KEELC 7375 (KLR)

Environment and Land Court
7 November 2024
BOBoaz N. Olao
1,061 words in judgment
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The bottom line

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A Kenyan court ruled that withdrawing a land lawsuit automatically means paying the defendants' legal costs, even after their appointment as estate administrators was revoked.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Busia (Boaz N. Olao J) deals solely with costs following the plaintiff's withdrawal of his adverse-possession suit over 10.8 hectares of land parcel Bukhayo/Iupidia/1125. The original plaintiff, Francis Bede Juma Oluta, later substituted by Leonard Wafula Makhanu, had sued the four Defendants as administrators of the Estate of Jacob Nandieki/Lukonyi. After Musyoka J revoked the Defendants' grant of November 19, 2012 in Busia HC Succession Cause No 296 of 2011, the plaintiff withdrew the suit on July 22, 2024, asking that no costs be awarded against the Defendants since their capacity as administrators had been revoked. Defendants' counsel, Mr Were, submitted that they had capacity when sued and had diligently attended court, and were therefore entitled to costs. The court first corrected the record, treating Mr Were as acting for all four Defendants given the Notice of Appointment on file. Relying on Order 25 Rule 2(2) of the Civil Procedure Rules, Section 27(1) of the Civil Procedure Act, the Supreme Court's decision in Salat v IEBC and the Court of Appeal's decision in Pil Kenya Ltd v Opong, the court held that costs of a withdrawn suit are payable to the Defendants as a matter of course unless the party resisting costs shows good reason. The mere revocation of the grant did not constitute such good reason. The court ordered the Plaintiff to pay the costs of the withdrawn suit. Ruling dated, signed and delivered electronically on November 7, 2024.

Key legal issues

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01

Whether revocation of the Defendants' grant of letters of administration after suit was filed is a good reason to deny them costs of the withdrawn suit

Holding

No. The Defendants had capacity as administrators when sued and diligently defended the suit; their subsequent loss of capacity does not displace the ordinary rule that costs follow the event.

Reasoning

Order 25 Rule 2(2) permits withdrawal on terms as to costs as are just, and Section 27(1) of the Civil Procedure Act makes costs discretionary but presumptively following the event unless the court for good reason otherwise orders. The revocation of the Defendants' grant by Musyoka J did not alter the fact that they were properly sued as administrators and attended court throughout. Denying them costs would not be a proper exercise of discretion.

p. 3
02

Whether counsel who filed a Notice of Appointment for all Defendants should be treated as acting for all Defendants notwithstanding a statement in open court

Holding

Yes. The record showed the firm had entered appearance for all four Defendants, so Mr Were was treated as appearing for all of them.

Reasoning

The court examined the record and found a Notice of Appointment dated September 17, 2020 by Gabriel Fwaya & Company Advocates covering all Defendants, and a memorandum of appearance filed by the 4th Defendant in person on July 8, 2016. The oral statement that counsel acted only for the first three Defendants was therefore corrected against the documentary record.

p. 2

Legal principles established

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  • Once a plaintiff withdraws a suit, costs are payable to the defendants as a matter of course unless the court, for good reason, orders otherwise, and the burden lies on the party resisting costs to show that good reason
  • A party's right to withdraw a matter before the court cannot be taken away; the court may only make an order as to costs

Court orders

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  1. 1.The costs of the withdrawn suit be met by the Plaintiff
  2. 2.Mr Were of Gabriel Fwaya & Company Advocates to be treated as appearing for all the Defendants including the 4th Defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 25 Rule 2(2)
  • Civil Procedure ActSection 27(1)

Cases cited (2)

  • Nicholas Kiptoo Arap Korir Salat -v- IEBC & Others
    Supreme Court Application No 16 of 2014
  • Pil Kenya Ltd -v- Joseph Opong
    C.A. Civil Case No 102 of 2007 [2009 eKLR]
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act; costs jurisdiction under Section 27(1) of the Civil Procedure Act and Order 25 Rule 2(2) of the Civil Procedure Rules

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, "Oluta (Substituted with Leonard Wafula Makhanu) v Nandieki & 3 others (Enviromental and Land Originating Summons 67 of 2015) [2024] KEELC 7375 (KLR)", Case Analysis (2024). Originating Summons dated June 29, 2015 (Busia). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7375/eng@2024-11-07

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