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ELCOtherOriginating Summons dated 30/8/23, filed 19th September 2023 (Siaya ELC)· [2025] KEELC 1126 (KLR)

In re Estate of the Late Charles Odemba Onyango (Deceased) (Enviromental and Land Originating Summons E005 of 2023) [2025] KEELC 1126 (KLR)

Environment and Land Court
6 February 2025
ADA.E. Dena
1,341 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Withdrawing a Kenyan lawsuit doesn't spare you from paying the other side's legal costs, even if you quit before trial.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Siaya, delivered by Lady Justice A.E. Dena on 6 February 2025, determines whether the 1st and 2nd Defendants/Respondents are entitled to costs after the Plaintiff/Applicant filed a Notice of Discontinuance of Suit dated 28 January 2025 under Order 25 Rule 1 of the Civil Procedure Rules. Counsel for the Plaintiff argued that because the Notice was filed before the suit was set down for hearing, no costs were payable; counsel for the Defendants relied on Order 25 Rule 3, which permits a defendant to obtain judgment for the costs of a wholly discontinued suit. The court held that discontinuance before trial is discretionary but costs fall to be dealt with under Order 25 Rule 3, whose terms are mandatory and which makes provision for the opposite party to recover costs. Applying the factors in Morgan Air Cargo Limited v Everest Enterprises Limited - the conduct of the parties, the subject of litigation, the circumstances leading to institution and termination, the stage and manner of termination, the relationship between the parties and the need to promote reconciliation under Article 159(2)(c) - the court noted that the Defendants were served on 7 December 2023, instructed advocates, filed a Replying Affidavit, documents, witness lists and a preliminary objection, and attended court repeatedly. It found no reason to deny them costs. The suit was marked wholly withdrawn and costs were awarded to the Defendants, with liberty to negotiate a settlement before the Deputy Registrar, failing which the matter to be mentioned for taxation on 5 March 2025.

Key legal issues

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01

Entitlement to costs upon discontinuance of a suit under Order 25 Rule 1

Holding

Costs are payable to the opposite party; the defendant may request the Registrar to sign judgment for costs of a wholly discontinued suit

Reasoning

Order 25 Rule 3 provides that upon a defendant's written request the registrar shall sign judgment for the costs of a wholly discontinued suit. The rule is couched in mandatory terms and leaves the registrar no discretion. Costs follow the event, and withdrawal of a suit is subject to payment of costs, guided by Mudhihiri Mohammed & 2 Others v Ahmed Imani & Others.

p. 2
02

Whether the court's discretion on costs should be exercised in favour of the defendants here

Holding

Yes - the defendants had been served, filed pleadings, a preliminary objection, attended court, and were thus entitled to costs

Reasoning

The court reviewed the litigation history: service on 7/12/2023, appointment of advocates, Replying Affidavit, List of Documents and Witnesses, a Notice of Preliminary Objection, multiple direction hearings and a fixed pre-trial conference. Applying the Morgan Air Cargo factors, the defendants' participation meant there was no reason to deny them costs of the withdrawn suit.

p. 3

Legal principles established

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  • Costs of a suit wholly discontinued under Order 25 Rule 1 are recoverable by the opposite party under Order 25 Rule 3, whose terms are mandatory
  • Costs are in the discretion of the court and must be exercised judiciously, guided by the circumstances of each case
  • A defendant who has participated in proceedings is entitled to costs of a withdrawn suit

Court orders

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  1. 1.This suit is hereby marked as wholly withdrawn pursuant to the Notice of Discontinuance of Suit dated 28/01/2025
  2. 2.Costs of the withdrawn suit are hereby awarded to the 1st and 2nd Defendants/Respondents
  3. 3.Parties are encouraged to negotiate on costs and may record any settlement reached before the DR ELC Siaya Hon Mkala
  4. 4.The matter shall be mentioned before the DR ELC Siaya Hon Mkala for further directions on settlement and/or taxation in the absence of settlement on 5/03/25
Jurisdiction invoked
Civil Procedure Rules, 2010, Order 25 Rules 1 and 3; section 27(1) Civil Procedure Act; Article 159(2)(c) of the Constitution

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, "In re Estate of the Late Charles Odemba Onyango (Deceased) (Enviromental and Land Originating Summons E005 of 2023) [2025] KEELC 1126 (KLR)", Case Analysis (2025). Originating Summons dated 30/8/23, filed 19th September 2023 (Siaya ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1126/eng@2025-02-06

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