[2019] KEELC 4857 (KLR)
The court found that since the plaintiff withdrew the suit before it was heard on its merits, and considering the nature of the dispute and the encouragement of amicable settlement under Article 159(2)(c) of the Constitution, it would not be just to burden either party with costs. The withdrawal was accepted, and...
Source-derived case information.
- Citation
- [2019] KEELC 4857 (KLR)
- Parties
- Plaintiff: Caroline Rasoa Khisa; Defendant: Lawrence Kundu Mukubuyi; Defendant: Fred Mwangale
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 97 of 2016
- Procedural Posture
- Land and Property Suit / Ruling on Withdrawal and Costs
- Outcome
- Suit withdrawn by the plaintiff; each party to bear their own costs.
- Judges
- FM Njoroge
- Legal Topics
- Withdrawal of Suit, Costs of Suit, Matrimonial Property Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Caroline Rasoa Khisa
Plaintiff
Lawrence Kundu Mukubuyi
Defendant
Fred Mwangale
Defendant
Procedural Posture
Land and Property Suit / Ruling on Withdrawal and Costs
Legal Issues
- 1 Whether the plaintiff is entitled to withdraw the suit without an order as to costs.
- 2 Whether any party should be saddled with the costs of the withdrawn suit.
- 3 Whether the dispute involved a matrimonial relationship affecting land ownership.
Ratio Decidendi
The court found that since the plaintiff withdrew the suit before it was heard on its merits, and considering the nature of the dispute and the encouragement of amicable settlement under Article 159(2)(c) of the Constitution, it would not be just to burden either party with costs. The withdrawal was accepted, and each party was ordered to bear their own costs, reflecting the court's discretion and the policy of promoting amicable resolution of disputes.
Court Disposition
Suit withdrawn by the plaintiff; each party to bear their own costs.
Orders
- The suit is marked as withdrawn.
- Each party will bear their own costs of the suit.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
ELC CASE NO. 97 OF 2016
CAROLINE RASOA KHISA.............................................PLAINTIFF
VERSUS
LAWRENCE KUNDU MUKUBUYI.......................1ST DEFENDANT
FRED MWANGALE................................................2ND DEFENDANT
RULING
1. The plaintiff in this suit filed a notice of withdrawal of suit on 7/11/2018 and orally applied to withdraw the suit on 28th November, 2018. All that remained was the issue of costs.
2. The plaintiff had filed the suit on the 8th June 2016 seeking a declaration that the sale of a half-acre plot on Kananachi “A” Farmwas illegal and an injunction to restrain the defendants from interfering with the plaintiff’s quiet possession of the same.
3. An order to compel the 1st defendant to reconstruct the matrimonial home and return the plaintiff’s personal belongings, household and farming items taken away from the house was sought.
4. The 1st defendant averred that there was no marriage between him and the plaintiff, but that she was only a lover and that the suit land was purchased by him before their relationship began.
5. The 1st defendant filed a defence on the 6th November 2017.
6. I have perused the record and found no defence filed by or on behalf of the 2nd defendant. This matter was allocated a hearing date by this court in the absence of the 2nd defendant’s defence.
7. I have considered the circumstances of this case. It arose out of perception by the plaintiff that she was entitled to the land and that there was a matrimonial relationship between the plaintiff and the 1st defendant.
8. The 1st defendant does not deny that there was a love relationship between him and the plaintiff.
9. The suit was not tried on its merits for the reason that on the 28th November 2011 the plaintiff appeared in person and informed the court that she was unable to pay an advocate and withdrew the suit. The true facets of that relationship will never be known. However parties are encouraged to resolve their dispute amicably by this court. It is an approach already entrenched in the rubric of our Constitution under Article 159 (2) c. It can only be hoped that the differences between the plaintiff and the defendant will be finally resolved by this withdrawal of suit. Consequently, I find no need of saddling any of the parties with the burden of costs after the rigours of this conflict.
10. Therefore, I hereby order that each party will bear their own costs of the suit.
It is so ordered.
Dated, signed and delivered at Kitale on this 29th day of January, 2019.
MWANGI NJOROGE
JUDGE
29/01/2019
Coram:
Before - Hon. Mwangi Njoroge, Judge
Court Assistant - Picoty
N/A for the applicant
N/A for the respondent
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
29/01/2019