Momposhi (Suing on Behalf of the Estate of Simintei ole Momposh - Deceased) v Ronko & 3 others (Environment and Land Case E018 of 2024) [2025] KEELC 6947 (KLR)

3rd and 5th Defendants from disposing, and or encumbering the suit property known as Cis Mara/ Olkinyei/ 815. 4. After the above Ruling, the matter was fixed for mention for Pre-Trial Directions (PTC). Thereafter, the matter has come to court severally for Pre-Trial Directions (PTC), wherein all the advocates are always present. The parties were granted more time to comply with Order 11 of the CPR pending the fixing of the suit for main trial. 5. On 9th July 2025, when the parties appeared before the Deputy Registrar of this court, Mr Willy Enock for the 3rd Defendant/Applicant informed the court that he had filed an Application dated 4th April, 2025 which he intended to prosecute first. The Application was fixed for hearing before this court for 9th October 2025. 6. On 9th October, 2025, the Advocates present were Mr Okinyi for the Plaintifi who informed the court that he had fully complied with Order 11 of Civil Procedure Rules and urged the court to set the matter down for hearing. Mr Onduso for 1st and 2nd Defendants was also present. Mr Ligami for 3rd Defendant/Applicant informed the court that he was ready to proceed with the Application dated 4th April 2025, which sought for stay of these proceedings until full payment of costs of the withdrawn suit. 7. Mr Okinyi for the Plaintifi informed the court that he was opposed to the said application, though he had not filed any response to the said Application. Mr Onduso too had not responded to the Application, dated 4th April 2025. 8. The Application is thus considered by this court as an opposed. 9. The Application in issue is dated 4th April 2025, which is brought under Order 25 Rule 3 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, wherein the 3rd Defendant/ Applicant has sought for; i. Orders of stay of these proceedings pending the hearing and determination of the 3rd Defendant’s/ Applicant’s Bill of Costs dated 25th September 2024. ii. Further or such other orders as the court may deem fit and just to grant. 10. This application is anchored on various grounds; among them; That the Plaintifi had filed a similar suit being MCELC/ E036 /2024: Teto Ole Momposhi Vs Capefield Ltd, at Narok Chief Magistrates Court, which suit was later withdrawn with costs to the Applicant herein on 26th September 2024; That the applicant has incurred costs which ought to be borne by the Plaintifi herein; that the suit at the lower court was filed on 20th March 2024, and was withdrawn on 30th July 2024; thereafter, the Plaintifi proceeded to file the instant suit in this court; that in the withdrawn suit, the 3rd Defendant/ Applicant had Entered Appearance, and filed a Defence, and thus incurred costs; that after the said withdrawal of the suit at the lower court, the 3rd Defendant/Applicant applied for taxation of costs at the lower court, and the said taxation is yet to be determined; that the filing of a subsequent suit is subjecting the 3rd Defendant/Applicant to further costs, and the Bill of Costs of the withdrawn suit ought to proceed and be determined first before this suit is heard and determined; further that the 3rd Defendant/Applicant stands to sufier financial loss in the event the suit is allowed to proceed; that it is in the interest of justice that the court do allow this application. 11. The Application is also supported by the Afidavit of Yakubu Oitayu Nkadayo, a Director of the 3rd Defendant, who reiterated most of the grounds in support of the Application. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6947/eng@2025-10-13 2

page 2 of 4

12. The court has considered the instant Application, the grounds in support of the same and the relevant provisions of law as cited by the Applicant and renders itself as follows; 13. Order 25 rule 3 of Civil Procedure Rules states that the Registrar will sign a Judgment for the costs of a discontinued suit upon the written request of any Defendant. Alternatively, any defendant can apply at the hearing for the costs of any part of the claim that has been withdrawn. 14. The 3rd Defendant/Applicant herein has applied for costs of the withdrawn suit as per the above provisions of Order 25 Rule 3 of CPR. The Applicant has anchored its application upon the above provisions of law, which does not state that a subsequent suit may be stayed. 15. However, Order 25 Rule 4 of CPR, allows a court to stay a new lawsuit if it is on the same cause of action as a previously filed and discontinued suit for which costs have not been paid. This rule prevents a plaintifi from starting a new case to avoid paying the costs of a prior, discontinued suit by giving the court the power to halt the new proceedings until the costs of the old ones are settled. 16. It is clear that the court can only stay the subsequent suit if costs have not been paid. The applicant herein has not yet been awarded costs, but has filed an application for taxation of bill of costs. 17. It is trite that costs are awarded at the discretion of the court. The court that allowed the said withdrawal of the suit has discretion to award costs of the discontinued suit or decline to award the said costs. The 3rd Defendant/Applicant is asking the court to stay this suit, whereas costs have not yet been awarded to it in the withdrawn suit. This court cannot find and hold that the Plaintifi herein has failed to pay costs of a discontinued suit, and thus the suit herein should be stayed. 18. Further, from the wording of Order 25 rule 4 of CPR, it is clear that the court has the discretion to order a stay of the new proceedings until the costs of the original, discontinued suit are paid. As usual, this discretion must be exercised judiciously. 19. The Application is also anchored under Sections 1A,1B and 3A of the Civil Procedure Act, which provisions of law enjoin this court to facilitate just and expeditious disposals of matters before court, that are governed by the Civil Procedure Act. Further, Section 3A of the same Act, grants the court unfettered discretion to issue orders that are necessary for the end of justice to be met. 20. The 3rd Defendant/Applicant having participated in the preparation of this suit from 5th December 2024, when the Ruling on the Interlocutory Application was delivered, it cannot now delay the hearing of the main suit, by seeking to stay the suit on account of non-payment of costs of a discontinued suit, and which costs have not yet been awarded, since the Bill of Costs application has not yet been determined. 21. For the above reasons, and being guided by Sections 1A,1B and 3A, of the Civil Procedure Act the court finds and holds that the necessary Orders herein is for the court to decline the instant application dated 4th April 2025. Therefore the said application is disallowed with costs being in the cause since the Plaintifi did not respond to the instant Application. 22. Let the suit proceed for hearing and be determined on merit. Application is dismissed with costs being in the cause It is so ordered. DATED, SIGNED AND DELIVERED AT NAROK THIS 13TH DAY OF OCTOBER 2025 L. GACHERU https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6947/eng@2025-10-13 3

page 3 of 4

JUDGE Delivered online in the presence of Elijah Meyoki - Court Assistant. Mr. Okinyi for the Plaintifi Mr. Onduso for the 1st and 2nd Defendant Mr. Ligami for the 3rd Defendant/ Applicant L. GACHERU JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6947/eng@2025-10-13 4

page 4 of 4