Mugo v Muchira & 2 others

Counsel argued that the ling of the 1st Defendant's response did not amount to the "event" contemplated under Section 27 of the Civil Procedure Act and that the 1st Defendant had not succeeded on the merits of the dispute. It was further submitted that, considering the circumstances under which the Plainti withdrew the proceedings, it would be fair and in the interests of justice for each party to bear its own costs. 3. The 1st Defendant, on the other hand, submitted that if indeed the Plainti's grievance was that the 2nd and 3rd Defendants had failed to furnish him with the boundary identication report, the proper remedy lay against those public ocers, and not against the 1st Defendant, who had no statutory duty to issue the report. Counsel further submitted that the dispute related to a boundary dispute for which a Notice of Preliminary Objection dated 15th September 2025 had already been led, and that it was only after the ling of the objection, and other pleadings that the Plainti elected to withdraw the suit. Reliance was placed on the case of Doris Koki versus Juvenaris A. Wambua & Another [2021] KEELC 2025 (KLR), where the Court held that a withdrawing party ought to bear the costs where the respondent had already incurred expenses in opposing the proceedings. Counsel also relied on the case of Mwanzo Kaptembwa Self Help Group suing through Ocials Florence Wangui Ngari & Another versus Florence Waithera Mungai & Another [2019] and urged the Court to award the 1st Defendant the costs of the suit. 4. The only issue arising for determination in this matter is whether the 1st Defendant is entitled to the costs of the suit following the withdrawal of the suit and application by the plainti thereof. 5. The court has considered the pleadings on record, the submissions by the learned counsel, the superior court decisions cited thereof and come to the following ndings: a. That there is no dispute that the Plainti was entitled under Order 25 Rule 1 of the Civil Procedure Rules to withdraw his suit before it was set down for hearing. Equally, there is no dispute that the suit and the application were accordingly marked as withdrawn by consent of the parties, leaving only the issue of costs for determination. The principles governing the award of costs are well settled. Section 27(1) of the Civil Procedure Act Chapter 21 of Laws of Kenya, vests the Court with discretion to determine by whom, and to what extent, costs shall be paid. 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. b. The Supreme Court in the case of Jasbir Singh Rai & 3 Others versus Tarlochan Singh Rai & 4 Others [2014] eKLR cited with approval the decision in the case of Joseph Oduor Anode versus Kenya Red Cross Society, Nairobi High Court Civil Suit No. 66 of 2009; [2012] eKLR, where the learned judge emphasized that although costs remain a matter of judicial discretion, that discretion must be exercised judiciously, and on sound legal principles, taking into account the circumstances of each case. The court observed that: “ ...whereas this Court has the discretion when awarding costs, that discretion must, as usual, be exercised judicially. The rst point of reference, with respect to the exercise of discretion, is the guiding principles provided under the law. In matters of costs, the general rule as adumbrated in the aforesaid statute [the Civil Procedure Act] is that costs follow the event unless the Court is satised otherwise. That satisfaction must, however, be https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5688/eng@2026-09-23 2

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patent on record. In other words, where the Court decides not to follow the general principle, the Court is enjoined to give reasons for not doing so. In my view, it is the failure to follow the general principle without reasons that would amount to an arbitrary exercise of discretion ...” The Plainti urges this Court to depart from the general rule on the basis that the 1st Defendant did not succeed on the merits of the dispute. With respect, I do not agree. c. 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. The defendant has been brought to Court, compelled to instruct counsel, and incur legal expenses in defending proceedings which the plainti subsequently elects not to pursue. In such circumstances, the fact that the Court has not pronounced itself on the merits of the dispute does not of itself, disentitle the defendant to costs. d. The decision in the case of Doris Koki versus Juvenaris A. Wambua & Another (supra) is particularly instructive. In that case, the Court held that where the respondent had already incurred expense in opposing the proceedings before the suit was withdrawn, the withdrawing party ought to bear those costs. That reasoning accords with the underlying rationale of Section 27 of the Civil Procedure Act, namely that a successful litigant should ordinarily be compensated for the expense of litigation, unless sucient cause is shown to depart from that principle. In the present case, the 1st Defendant had already entered an appearance and led a Statement of Defence, a Replying Adavit, a Notice of Preliminary Objection, a witness statement, and written submissions. These were not merely formal steps. They required legal representation, preparation, and expense. e. 6. The Plainti has attributed the institution of these proceedings to the conduct of the 2nd and 3rd Defendants in allegedly failing to provide the boundary identication report. Whether or not that was so, the fact remains that the 1st Defendant was brought before the Court and compelled to defend the proceedings. He bore no statutory obligation to supply the report complained of. In those circumstances, I nd no sucient reason to deny him the costs he incurred in defending the suit. I am therefore not persuaded that this is one of those exceptional cases where the Court should depart from the general principle that costs follow the event. Having come to the determinations above on the question of costs, the court nds and orders as follows: a. That the suit and application having been withdrawn by the plainti, after the 1st defendant had led his pleadings in opposition thereto, the latter is entitled to costs. b. That the plainti will therefore pay the 1st defendants costs. c. That the le be closed. It is so ordered. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 23RD DAY OF SEPTEMBER 2026. S. M. KIBUNJA ELC JUDGE In the presence of: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5688/eng@2026-09-23 3

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Plainti – M/S Waweru. Defendants – M/S Natocho for 1st Defendant M/S Karimi for Kiongo for 2nd & 3rd Defendants Kinyua/Charles - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5688/eng@2026-09-23 4

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