Luthuli v Canaan Developers Limited & another

Reference No.1870/X/134 (Original Number 1870/X/69/1), pending arbitration. The Respondents led a replying adavit to the same dated 17th March 2025. 6. Before the application could be heard the Respondents surrendered the title to the Applicant on the 25th April 2025. This prompted the Applicant to withdraw the suit by ling a notice of withdrawal on the 9th May 2025 which was allowed by the court on the 13th May 2025. The parties agreed that the court would determine the issue of costs. 7. The sole issue for the determination is whether the Respondents are entitled to costs. Order 25 of the Civil Procedure Rules makes provision for withdrawal of suits under rules 1 and 2 thereof. It provides that: At any time before the setting down of the suit for hearing the plainti may by notice in writing, which shall be served on all parties, wholly discontinue his suit against all or any of the defendants or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action. Where a suit has been set down for hearing it may be discontinued, or any part of the claim withdrawn, upon the ling of a written consent signed by all the parties. (2) Where a suit has been set down for hearing the court may grant the Plainti leave to discontinue his suit or to withdraw any part of his claim upon such terms as to costs, the ling of any other suit, and otherwise, as are just. 8. The Supreme Court of Kenya in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others SC.APP. No.16 of 2014 had this to say on withdrawal of a suit”“ A party’s right to withdraw a matter before the court cannot be taken away. A court cannot bar a party from withdrawing his matter. All that the court can do is to make an order as to costs where it is deemed appropriate.” 9. Section 27(1) of the Civil Procedure Act provides that: “ Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid...Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.” 10. The general rule, as stated above, is that costs follow the event unless there is good reason to depart from that principle. In Party of Independent Candidates of Kenya v Mutula Kilonzo & 2 others [2013] eKLR) the court held; Costs are not awarded as a matter of right. They are awarded at the discretion of the Court. At the risk of monotony, the discretion must be exercised judicially upon dened legal principles. Therefore, the law in designing the legal phrase that ‘’Cost follow the event’’ recognized the fact that there could be no one size t-all’’ prescription on the matter. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18486/eng@2025-12-11 2

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11. In Wanjiku & others versus Del monte Kenya Ltd & another ;National Environment Authority &6 others ( interested parties) Environment and Land Petition E 001 of 2024(2024) KEELC 13818 (KLR) the court set out factors that should guide a court in awarding costs 12. These factors are;The conduct of the partiesThe subject of litigationThe circumstances which led to the institution of the proceedingsThe events which led to the terminationThe stage at which the proceedings were terminatedThe manner in which they were terminatedThe relationship between the partiesThe need to promote reconciliation 13. The court has discretion on whether to award costs or not. As always, discretion must be exercised judiciously and in accordance to the law and established principles taking into account the circumstances of each individual case. 14. In the instant case, the Applicant led the application to obtain injunctive reliefs while pending Arbitration. Prior to ling the application, the Applicant had written several demand letters and made a Declaration of Dispute all of which elicited no response. The Respondent only availed the title documents after the application was led in court. The matter came up for two virtual mentions which the Respondents participated in, before the matter was withdrawn. 15. Having considered the circumstances which led to institution of the proceedings and the fact that immediately the Applicant obtained the documents they withdrew the application, I nd that this is a t case to exercise discretion in favour of the Applicant. As such each party will bear their own costs for the suit. RULING SIGNED DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 11TH DAY OF DECEMBER 2025 JUDY OMANGE JUDGE In the presence of Court Assistant Catherine Mr. Mutanda for Applicant Mr. Kaula for Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18486/eng@2025-12-11 3

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