[2013] KEHC 6610 (KLR)
The court held that the withdrawal of the suit by the Plaintiffs constitutes the relevant event for the purposes of awarding costs. The Plaintiffs' reason for withdrawal, being the sale of the suit property by a third party, did not constitute a good reason to depart from the general rule that costs follow the...
Source-derived case information.
- Citation
- [2013] KEHC 6610 (KLR)
- Parties
- Plaintiff: Benjamin Musembi Nganda; Plaintiff: Josephine Muthini Nganda; Defendant: Bakulesh Chandrakant Jani; Defendant: City Council of Nairobi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 300 of 1999
- Procedural Posture
- Civil Case / Ruling on Costs After Withdrawal of Suit
- Outcome
- Costs awarded to the 2nd Defendant; no order as to costs for the 1st Defendant.
- Judges
- DW Mbuteti
- Legal Topics
- Costs Award, Withdrawal of Suit, Discretion of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benjamin Musembi Nganda
Plaintiff
Josephine Muthini Nganda
Plaintiff
Bakulesh Chandrakant Jani
Defendant
City Council of Nairobi
Defendant
Procedural Posture
Civil Case / Ruling on Costs After Withdrawal of Suit
Legal Issues
- 1 Whether the 2nd Defendant is entitled to costs following the withdrawal of the suit by the Plaintiffs.
- 2 Whether there is good reason to deny the 2nd Defendant its costs.
- 3 Whether any order as to costs should be made in favour of the 1st Defendant.
Ratio Decidendi
The court held that the withdrawal of the suit by the Plaintiffs constitutes the relevant event for the purposes of awarding costs. The Plaintiffs' reason for withdrawal, being the sale of the suit property by a third party, did not constitute a good reason to depart from the general rule that costs follow the event. As there was no fault on the part of the 2nd Defendant and no good reason to deny it costs, the court awarded costs to the 2nd Defendant. No order as to costs was made in favour of the 1st Defendant due to lack of appearance and participation at the costs hearing.
Court Disposition
Costs awarded to the 2nd Defendant; no order as to costs for the 1st Defendant.
Orders
- The 2nd Defendant is awarded costs of the suit.
- No order as to costs for the 1st Defendant.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL CASE NO. 300 OF 1999
BENJAMIN MUSEMBI NGANDA
JOSEPHINE MUTHINI NGANDA...........PLAINTIFFS
VERSUS
BAKULESH CHANDRAKANT JANI
CITY COUNCIL OF NAIROBI ..........…DEFENDANTS
R U L I N G
On 20th December 2011 this suit was marked withdrawn. The issue of costs was left to Court to determine. Submissions on the same were made for the Plaintiffs and the 2nd Defendant. There was no appearance for the 1st Defendant during arguments on costs despite service of notice. I have considered the arguments made.
The withdrawal of the suit by the Plaintiffs was informed by the fact, as submitted by their learned counsel, that the suit property was sold by a third party in the year 2007, a financial institution, in exercise of its statutory power of sale. The substratum of the suit thus disappeared without the Plaintiffs’ fault. But it was quickly conceded that it was not the 2nd Defendant’s fault either!
For the 2nd Defendant it was submitted that costs follow the event, and in this case there was no cause to deny the 2nd Defendant its costs.
Under Section 27(1) of the Act costs are at the discretion of the Court or Judge. However, under the provisoto that subsection, 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 event here is the withdrawal of the suit, not the reason for the withdrawal. The Plaintiffs having withdrawn their suit they must bear the costs thereof. The Plaintiffs appear to appreciate this legal position as their learned counsel stated during arguments that they have pleaded for the Defendants’ kind understanding on the issue of costs to no avail.
I find no good reason to deny the 2nd Defendant its costs of the suit and I award the same. I make no order as to costs of the 1st Defendant. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF SEPTEMBER 2013
H. P. G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 5TH DAY OF SEPTEMBER 2013