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ELCOtherELCLC E004 OF 2024· [2025] KEELC 4006 (KLR)

Kiberenge v Warunga & 2 others (Environment & Land Case E004 of 2024) [2025] KEELC 4006 (KLR)

Environment and Land Court
22 May 2025
599 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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If you withdraw your lawsuit in Kenya without showing good reason, you will likely pay the other side's costs.

What this practically means

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Executive summary

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The plaintiff, Benedict Masika, instituted this suit by a plaint dated 19th March 2025 together with a Notice of Motion under certificate of urgency. A prior application was dismissed with costs to the Respondents. Counsel for the plaintiff then sought to withdraw the suit with no order as to costs; the application was unopposed save on the question of costs. Failing agreement, the court directed written submissions; only the 1st and 2nd Defendants filed. They argued that although the parties are relatives and costs are ordinarily not awarded between relatives, the plaintiff is litigious, having filed cases in Webuye, Kimilili and the present suit, and that it would be just to award them costs. The court considered Section 27 of the Civil Procedure Act, Cap 21, which vests discretion over costs in the court subject to the proviso that costs follow the event unless the court for good reason otherwise orders. The plaintiff, who bore the onus of justifying a no-costs withdrawal, filed no submissions. The court found no reason to deny the defendants costs and ordered that the suit be marked withdrawn with costs to the 1st and 2nd Defendants. Judgment delivered at Bungoma on 22nd May 2025 by Hon. E.C. Cherono, ELC Judge. The judgment contains internal date inconsistencies flagged in the data quality notes.

Key legal issues

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01

Whether costs should be withheld upon voluntary withdrawal of a suit

Holding

The suit was withdrawn but with costs to the 1st and 2nd Defendants because the plaintiff did not justify a departure from the ordinary rule

Reasoning

Section 27 of the Civil Procedure Act vests discretion in the court on costs, with the proviso that costs follow the event unless good reason is shown. The court directed parties to file submissions on whether special or exceptional circumstances existed; only the 1st and 2nd Respondents filed. The plaintiff's silence left the court no basis to deny costs.

p. 2

Legal principles established

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  • Costs of and incidental to all suits are in the discretion of the court, but costs shall follow the event unless the court for good reason otherwise orders

Court orders

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  1. 1.The suit is marked as withdrawn with costs to the 1st and 2nd Defendants

Authorities

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Legislation

  • Civil Procedure Act, Cap 21 Laws of KenyaSection 27(1)
Jurisdiction invoked
Section 27 of the Civil Procedure Act, Cap 21 (discretion as to costs)

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, "Kiberenge v Warunga & 2 others (Environment & Land Case E004 of 2024) [2025] KEELC 4006 (KLR)", Case Analysis (2025). ELCLC E004 OF 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4006/eng@2025-05-22

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