Mugo v Muchira & 2 others
The bottom line
#A Kenyan court ruled that withdrawing a lawsuit doesn't spare you from paying the legal costs of a defendant who already prepared a defence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 1st Defendant is entitled to the costs of the suit following the withdrawal of the suit and application by the plaintiff
Key legal issues
#Whether withdrawal of a suit disentitles a defendant who has taken substantive steps to costs
No - the withdrawal itself constitutes the event for costs where the defendant had entered appearance and taken substantive steps; the absence of a merits determination does not of itself disentitle the defendant.
The court reasoned that a defendant brought to court is compelled to instruct counsel and incur legal expenses defending proceedings the plaintiff elects not to pursue. The 1st Defendant had filed a defence, replying affidavit, preliminary objection, witness statement and submissions - not merely formal steps - requiring preparation and expense. The plaintiff's grievance lay against the 2nd and 3rd Defendants, not the 1st, who bore no statutory duty to supply the boundary report.
Whether the plaintiff showed sufficient cause to depart from the general rule that costs follow the event
No - the plaintiff failed to demonstrate an exceptional case justifying departure from the general principle.
The plaintiff argued the 1st Defendant had not succeeded on the merits and that fairness required each party to bear its own costs. The court held that attributing the suit to the conduct of the 2nd and 3rd Defendants did not excuse the 1st Defendant's incurred expenses, since he was compelled to defend proceedings in which he had no statutory obligation. No sufficient cause was shown for departure.
Legal principles established
#- Where proceedings are withdrawn after a defendant has entered appearance and taken substantive steps in defending the claim, the withdrawal itself ordinarily constitutes the event for purposes of costs, even though the merits were never pronounced on.
- The discretion under Section 27(1) of the Civil Procedure Act is not unfettered; a court departing from the general rule that costs follow the event must give reasons on record.
Court orders
#- 1.That the suit and application having been withdrawn by the plaintiff, after the 1st defendant had filed his pleadings in opposition thereto, the latter is entitled to costs
- 2.That the plaintiff will pay the 1st defendant's costs
- 3.That the file be closed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 27(1) of the Civil Procedure Act, Chapter 21, Laws of Kenya (discretion as to costs); Order 25 Rule 1 of the Civil Procedure Rules (withdrawal of suit)
Relief refused
#Plaintiff's request that each party bear its own costs
No sufficient reason to depart from the general rule that costs follow the event; the 1st Defendant had taken substantive steps in defending the claim
Costs
The plaintiff to pay the 1st defendant's costs of the suit; the file to be closed.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Where proceedings are withdrawn after a defendant has entered an appearance and taken substantive steps in defending the claim, the withdrawal itself ordinarily constitutes the event for purposes of costs.
That discretion however, is not unfettered. The proviso to the section establishes the general rule that costs follow the event unless the Court, for good reason, orders otherwise.
That the plainti will therefore pay the 1st defendants costs.
That the le be closed.
Issues in the judgment
#Counsel names differ between body and appearance list: 'Miss Muturi holding brief for Magee Law LLP' in body versus 'M/S Natocho for 1st Defendant' in appearances
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mugo v Muchira & 2 others", Case Analysis (2026). Environment and Land Case E027 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5688/eng@2026-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.