[2018] KEELC 3521 (KLR)
The court found that the application for review was actively prosecuted, served on the interested party, and required the interested party to incur expenses in preparation and filing a replying affidavit. There were no good reasons advanced by the applicant as to why costs should not be awarded. The court exercised...
Source-derived case information.
- Citation
- [2018] KEELC 3521 (KLR)
- Parties
- Applicant: Abraham Muthee M’Ethaiba; Respondent: Director of Land Adjudication and Settlement; Respondent: District Land Adjudication Officer Meru North; Respondent: Geoffrey K. Igweta Mwathi; Respondent: Justus Gituma Mboroki
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 67 of 2009
- Procedural Posture
- Judicial Review / Ruling on Costs After Withdrawal of Review Application
- Outcome
- Applicant to pay costs of the withdrawn application dated 27.11.2017.
- Legal Topics
- Costs Award, Withdrawal of Application, Judicial Discretion on Costs, Land Adjudication
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abraham Muthee M’Ethaiba
Applicant
Director of Land Adjudication and Settlement
Respondent
District Land Adjudication Officer Meru North
Respondent
Geoffrey K. Igweta Mwathi
Respondent
Justus Gituma Mboroki
Respondent
Procedural Posture
Judicial Review / Ruling on Costs After Withdrawal of Review Application
Legal Issues
- 1 Whether the applicant should be condemned to pay costs after withdrawing the application for review.
- 2 What constitutes the 'event' for purposes of awarding costs under section 27 of the Civil Procedure Act.
Ratio Decidendi
The court found that the application for review was actively prosecuted, served on the interested party, and required the interested party to incur expenses in preparation and filing a replying affidavit. There were no good reasons advanced by the applicant as to why costs should not be awarded. The court exercised its discretion under section 27 of the Civil Procedure Act to order the applicant to pay the costs of the withdrawn application, holding that the event for purposes of costs was the withdrawal of the application after the interested party had participated and incurred expenses.
Court Disposition
Applicant to pay costs of the withdrawn application dated 27.11.2017.
Orders
- The applicant is condemned to pay costs of the application dated 27.11.2017 filed on 5.12.2017.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
HC JR 67 OF 2009
ABRAHAM MUTHEE M’ETHAIBA.........................APPLICANT
VERSUS
DIRECTOR OF LAND
ADJUDICATION AND SETTLEMENT.........1ST RESPONDENT
DISTRICT LAND ADJUDICATION
OFFICER MERU NORTH..............................2ND RESPONDENT
GEOFFREY K. IGWETA MWATHI....1ST INTERESTED PARTY
JUSTUS GITUMA MBOROKI..........2ND INTERESTED PARTY
RULING
1. Vide the court’s ruling of 2. 11. 2017, this suit was dismissed. Exparte applicant then filed an application dated 27. 11. 2017 to have the orders of 2. 11. 2017 reviewed. On 17. 4.2018, the said application was withdrawn. However, interested party prayed for costs inquiring that the application was served and hence the interested party incurred expenses in filing and serving a replying affidavit.
2. On behalf of the exparte applicant, it has been argued that under section 27 of the Civil Procedure rules, “costs follow events”. The exparte applicant has posed the question “what is the event? Is it a win or a compromise? Exparte applicant has cited the case of JR no 69 2014 RV Rosemary Wairimu Munene where it was held that although costs follow events the awarding of such costs should not be used to penalize the losing party.
3. Section 27 of Civil Procedure Code 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, 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. The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such”.
4. In the present cases, the suit was dismissed vide a ruling of 2. 11. 2017 exparte applicants then filed on applications seeking to have a review of the orders of 2. 11. 2017. That application was served and that is why the Interested Party filed a replying affidavit dated 10. 1.2018.
5. The court’s records indicate that after the application was filed on 5. 12. 2017, the matter came up before this court on 6. 12. 2017, then on 14. 12. 2017 and on 17. 4.2018. In all these instances, the court was giving directions on how the application would be determined. In particular on 14. 12. 2017, directions were given by the court for parties to file submissions within a limited period. It is clear that the application was active and hence the interested party must have incurred expenses in preparation to have the same prosecuted.
6. In the circumstances I find that these are no good reasons as to why applicant should not pay the costs.
7. The applicant is therefore condemned to pay costs of the application dated 27. 11. 2017 filed on 5. 12. 2017.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 25th APRIL, 2018
IN THE PRESENCE OF:-
Court Assistant:Janet/Galgalo
Waigwa for exparte applicant present
Mbaabu Calpeters for interested party present
B. Kimathi for respondents present
HON. LUCY. N. MBUGUA
ELC JUDGE