Alex Gibendi Indamanywa v Coptic Hospital (main Hospital)

5. In the circumstances, this court directed the parties to argue, orally, the issues of the withdrawal of the suit and the fate of the counterclaim. However, on 16.02.2026, Mr. Onderi, holding brief for Mr. Makori advocate for the Defendant, indicated that the Defendant was not opposed to the withdrawal of the Plaint. Oral Submissions 6. On 24.02.2026, Mr. Sabula counsel for the Plaintiff, submitted that the Plaintiff wishes to withdraw the suit as indicated in the Notice of Withdrawal and that Order 25, Rule 1 of the Civil Procedure Rules permits a party to withdraw his or her suit. Counsel cited Washumbu (DA) Company Limited v City Building Limited & another [2019] KEELC 983 (KLR) where the court addressed itself on the issue of withdrawal of a suit. Counsel also cited Article 159 of the Constitution on the right to fair and substantive justice. 7. He further submitted that the reason for seeking to withdraw the suit was dispensed with upon delivery of the ruling on 29.12.2025 thereby causing the reliefs sought in the plaint to be spent and/or abandoned and that the Defendant does not stand to suffer any prejudice if the same is allowed. 8. Mr. Sabula submitted, further that the counterclaim filed by the Defendant constitutes a separate suit which can still proceed notwithstanding the withdrawal of the suit. He urged the court to allow the withdrawal, with no order as to costs. 9. In reply, Mr. Onderi, advocate for the Defendant, reiterated that the Defendant has no objection to the withdrawal request by the Plaintiff, with no order as to costs. He urged the court to allow the counterclaim to proceed as an independent suit, distinct from the Plaintiff’s claim, adding that the law permits the continuation of a counterclaim in such manner. He cited Order 7, Rule 13 of the Civil Procedure Rules to support his submission. The advocate further relied on the decision in County Government of Kilifi v Mombasa Cement Limited [2017] KECA 633 (KLR) where it was acknowledged that a counterclaim need not arise from the same cause of action and may entail an independent action altogether. 10. In his rejoinder, Mr. Sabula submitted that while an award of costs lies with the court’s discretion, the Defendant is not entitled to costs in this instance, since the claim was triggered by an illegal action on its part. 11. On the subject of the counterclaim, counsel submitted that the Plaintiff is not opposed to having it proceed, though stating that no case can be filed personally against the Plaintiff since he is not responsible for payment of the sums allegedly owed and claimed therein. Determination 12. I have considered the respective oral arguments on the issue of withdrawal of the suit and the issue touching on the counterclaim. On the issue of the withdrawal of the suit, I have read Order 25, Rule 1 of the CPR which provides thus: “ At any time before the setting down of the suit for hearing the plaintiff 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.” 13. Further to the foregoing, there are various instances where a party may be allowed to withdraw or discontinue of a suit or claim. These were laid out by the Court of Appeal in the case of Beijing https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7399/eng@2026-03-27 2

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Industrial Designing & Research Institute v Lagoon Development Ltd (2015) eKLR quoted in the case of Washumbu (DA) Company Limited v City Building Limited & another [2019] KEELC 983 (KLR) earlier cited by counsel for the Plaintiff, as follows: “ The above provision presents three clear scenarios regarding discontinuance of suit or withdrawal of claims. The first scenario arises where the suit has not been set down for hearing. In such an instance, the plaintiff is at liberty, any time to discontinue the suit or to withdraw the claim or any part thereof. All that is required of the plaintiff is to give notice in writing to that effect and serve it upon all the parties. In that scenario, the plaintiff has an absolute right to withdraw his suit, which we agree cannot be curtailed. The second scenario arises where the suit has been set down for hearing. In such a case the suit may be discontinued or the claim or any part thereof withdrawn by all the parties signing and filing a written consent of all other parties. The last scenario arises where the suit has been set down for hearing but all the parties have not reached any consent on discontinuance of the suit or withdrawal of the claim or any part thereto. In such eventuality, the plaintiff must obtain leave of court to discontinue the suit or withdraw the claim or any part thereof, which is granted upon such terms and are just. In this scenario too, the plaintiff’s right to discontinue his suit is circumscribed by the requirement that he must obtain the leave of the court. That such leave is granted on terms suggest that it is not a mere formality” 14. The first instance under which a withdrawal is permissible and which applies to the present circumstances, is where a matter has not been set down for hearing. In this case, the record shows that the Plaintiff’s suit had not been set down for hearing at the time of filing the Notice of Withdrawal and that the same was served upon the Defendant and/or its advocate. 15. In view of the foregoing coupled with the fact that the Defendant is not opposed to the withdrawal, I am satisfied to exercise my discretion by allowing the withdrawal as prayed. 16. However, it is not lost to me that the parties are disputing the issue of costs arising from the withdrawal of the suit. The Plaintiff on his part urges that the suit be withdrawn with no order as to costs, while the Defendant on its part urges that costs be apportioned between the parties. 17. The applicable provision on this subject is Section 27(1) of the Civil Procedure Act (CPA) which expresses thus: “ 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, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: 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.” 18. The final decision as to whether costs are payable and by whom is a matter of the discretion of the court upon considering the circumstances of the matter at hand. This position was reafirmed by the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7399/eng@2026-03-27 3

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Supreme Court in the case of Jasbir Singh Rai & 3 others vs. Tarlochan Singh Rai & 4 others [2014] eKLR where the Court succinctly stated the following: “ It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or Respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation… Although there is eminent good sense in the basic rule of costs – that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the applicant.” 19. In the present case, it is evident from the record that following the institution of the suit, save for the application seeking injunctive orders, which was ultimately allowed, no other substantive action took place in the matter, prior to the Plaintiff filing the Notice of Withdrawal. It is also evident that the suit was recently filed in December, 2025 and that the prayer for withdrawal was unopposed by the Defendant and this took place before the suit could proceed for hearing, thereby leaving no successful party or loser for that matter. 20. Moreover, it is not in dispute that the subject matter to the dispute under the claim has since been overtaken by events thereby frustrating the said claim and necessitating its withdrawal. In the premises, I am guided by the authority of Baridi Felix Mbevo v Musee Mati & 2 others [2021] eKLR where the Supreme Court held that: “ We have further considered the rival submissions by the parties and are convinced that the petition was withdrawn on grounds that it had been overtaken by events…Applying the principle in the Jasbir Singh Rai Case that costs normally follow the event, the question to ask is whether an event to which costs would follow has materialized. The answer is in the negative. The appellant’s appeal did not fail but was frustrated. Strictly speaking, there were no winners or losers following the withdrawal. It is the occurrence of the event which crystalizes costs for the successful party. In this matter, that event has not crystalized. That said, the inevitable conclusion is that each party shall bear its costs before this Court.” 21. Being guided by the above-cited binding authorities, I am of the view that it would be in the best interest of justice to make an order that each party should bear its own costs of the withdrawn suit. 22. The second subject requiring my determination is whether to allow the Defendant’s counterclaim to proceed. On this issue, the Defendant has placed reliance on Order 7, Rule 3 of the CPR which stipulates thus: “ If, in any case in which the defendant sets up a counterclaim the suit of the plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with.” 23. As earlier mentioned, the Defendant through its advocate, argued that the counterclaim in this instance constitutes a cross-suit and therefore urges that the same be regarded as an independent suit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7399/eng@2026-03-27 4

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24. In the case of County Government of Kilifi v Mombasa Cement Limited [2017] KECA 633 (KLR) which was quoted by the Defendant’s advocate, the court reasoned that: “ …it is safe to conclude that a defendant is permitted to raise a counterclaim against a plaintiff on any right and claim he may have against the plaintiff even where the subject matter or cause of action maybe different from the original suit. The rationale is to avoid multiplicity of proceedings and claims based on same or different cause of action between parties to the suit to enable a court to pronounce a final judgment in the suit both on the original claim and on the counter claim.” 25. In the present instance, a perusal of the Defendant’s pleadings and in particular its counterclaim, reveals that the Defendant is seeking a sum of Kshs. 3,228,783.30 against the Plaintiff on the basis of outstanding medical bills arising from the medical treatment and care of the deceased. The circumstances before me are however unique, since the counterclaim, though constituting a distinct cause of action, arose from a similar set of circumstances as the withdrawn suit. 26. Upon my consideration of all the foregoing factors and taking into account the Plaintiff’s averment that he does not oppose the prayer sought, I am therefore persuaded to exercise my discretion in allowing the said prayer. 27. Consequently, the following orders are made: 28. a. The Plaintiff is allowed to withdraw the suit filed in this case vide the Plaint dated 8.12.2025 to the effect that the said Plaint be and is hereby marked as withdrawn, pursuant to the Notice of Withdrawal dated 27.01.2026. b. The Defendant be and is hereby allowed to proceed with the counterclaim dated 15.12.2025. c. Parties shall each bear their own costs of the withdrawn suit. It is so ordered. DATED, SIGNED AND DELIVERED THIS 27TH DAY OF MARCH 2026. S. N. MUTUKU JDUGE In the presence of: Mr. Sabula for the Plaintiff Mr. Onderi for Mr. Makori for the Defendant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7399/eng@2026-03-27 5

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