Ngatho & another (Both Suing as Administrators of Wanjiku Njau) v Kigo & another (Environment & Land Case E389 of 2022) [2025] KEELC 670 (KLR)
The bottom line
#Kenya's High Court confirmed that withdrawing a lawsuit doesn't automatically shield you from paying the defendant's costs—the judge's discretion controls.
What this practically means
#Executive summary
#Key legal issues
#Whether the award of costs to the 1st Defendant after the notice of withdrawal was served constituted an error apparent on the face of the record
No. The court had discretion to award costs because the 1st Defendant had participated in the suit, including in an interlocutory injunction application, before the notice of withdrawal, and had incurred costs.
The court applied the test from National Bank of Kenya v Ndungu Njau that an error apparent on the record must be prima facie visible and self-evident. It found no such error: a defendant who had participated in proceedings and expended costs before withdrawal could properly be awarded costs, and quantum was left to the taxing master.
Legal principles established
#- An error apparent on the face of the record must be self-evident and not require elaborate argument; a mere erroneous conclusion of law is not a ground for review
- Withdrawal of a suit does not automatically disentitle a defendant who participated in the proceedings from costs; the award of costs is discretionary
Court orders
#- 1.The notice of motion dated 8th October 2024 seeking review of the costs order of 15th July 2024 is dismissed with costs
- 2.The quantum of costs payable to the 1st Defendant is left to be argued before the taxing master
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngatho & another (Both Suing as Administrators of Wanjiku Njau) v Kigo & another (Environment & Land Case E389 of 2022) [2025] KEELC 670 (KLR)", Case Analysis (2025). Notice of Motion dated 8th October 2024 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/670/eng@2025-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.