Daki Limited v JTG Enterprises Limited (Civil Case E021 of 2021) [2025] KEHC 17113 (KLR) (22 October 2025) (Ruling) Neutral citation: [2025] KEHC 17113 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KIAMBU CIVIL CASE E021 OF 2021 DO CHEPKWONY, J OCTOBER 22, 2025 BETWEEN DAKI LIMITED .......................................................................................... PLAINTIFF AND JTG ENTERPRISES LIMITED ............................................................. DEFENDANT RULING 1. On 2nd October, 2025, this matter was scheduled for Defence hearing but neither the Defendant nor its Counsel were in attendance despite having been served with the hearing notice for the day as confirmed by the Affidavit of Service sworn on 9th September, 2025. The court then found the Defendant had lost interest in having their case prosecuted and hence the Plaintiff’s case was unchallenged. The court then directed the Plaintiff to file and serve written submissions in support of its case. 2. The Defendant has now filed a Notice of Motion application dated 9th October, 2025 in which it is seeking to set aside the proceedings and the default Judgment entered. The application is based on the grounds set out on its face and reiterated in the Supporting Affidavit of Luis Wahome sworn on even date. 3. When the application came up for interparties hearing on 16th October, 2025, the Defendant’s counsel urged the court to consider the interest of justice and allow the same as prayed. The Plaintiff’s Counsel did not object to the prayer but urged the court to order that they be paid thrown away costs of Kshs. 40,000/=. However, the Defendant’s Counsel, while not opposed to Plaintiff’s Counsel’s prayer for costs, he was of the view that the amount was too high and proposed a sum of Kshs. 5,000/= which he alleged is higher than the recommended amount in the Advocates Remuneration Order that provides for a sum of Kshs. 3,000/=. 4. Having listened to both counsel for the parties in their respective sentiments, this Court finds that since the application is unopposed, proceeds t allow the same in the terms presented. The only issue left for https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17113/eng@2025-10-22 1
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determination is on thrown away costs that would be sufficient and reasonable in the circumstances of this case, considering the Plaintiff’s counsel seeks for a sum of Kshs.40,000/= while Defendant’s Counsel has proposed Kshs.5,000/=. 5. It is trite that thrown away costs are not considered as fees but it is payment for inconvenience caused by one party in legal proceedings or its preparation of a trial. In the case of Ethics and Anti-Corruption and Economic Crimes Division –vs- Otieno & 5 Others [2023] KEHC 21310 (KLR), the Court stated as follows on the issue of thrown away costs:“ Thrown away costs are the payment of a party’s costs for wasted preparation for a trial or other hearing. In this case the 1st Defendant/Applicant did not file a defence for close to 15 months upon entry of appearance. The judgment entered against him on March 9, 2020 was for all intents and purposes a regular judgment. The thrown away costs ordered by this court were intended to compensate the Plaintiff/Respondent for the time wasted by the default on the part of the 1st Defendant/Applicant.” 6. In the instant case, it is evident from the record that there have been several adjournments in this case at the instance of the Defendant and these have inconvenienced the Plaintiff and the counsel who closed their case over two (2) years ago. And even from the Defendant’s counsel’s response, it is clear that they are not opposed to the request save for the amount which he has submitted is too high. In as much as the Plaintiff’s counsel is entitled to compensation for the wasted effort and that on all the occasions the case have been adjourned for non-attendance by Defendant’s advocate, this court finds that the costs to be awarded should not be too high as to amounts to unjust enrichment. Therefore, in exercise of discretion, this Court issues the following orders:a. The Notice of Motion application dated 9th October, 2025 be and is hereby allowed. b. The proceedings and consequential orders issued by the court on 2nd October, 2025 be and are hereby set aside. c. The Defendant to pay to the Plaintiff thrown away costs of Kshs.10,000/= before the next hearing date. d. Failure to comply with over No.(c) will render the application automatically dismissed. e. Hearing of defence case on 2nd February, 2026 at 2.00pm. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 22ND DAY OF OCTOBER , 2025. D. O. CHEPKWONY JUDGE In the presence of: Mr. Kahia counsel for Plaintiff Mr. Loius Wahome counsel for Defendant Court Assistant – Martin/Sakina https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17113/eng@2025-10-22 2
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