[2009] KEHC 3565 (KLR)
The court held that, although it has discretion under Section 27(1) of the Civil Procedure Act to determine who should bear costs, the general rule is that costs follow the event. The court found that the plaintiffs were compelled to file the suit due to the defendants' actions, and the subsequent settlement of the...
Source-derived case information.
- Citation
- [2009] KEHC 3565 (KLR)
- Parties
- Plaintiff: Col. Josiah Landy Mrashui; Plaintiff: Samuel Kalema Mrashui; Defendant: Clement Mulemwa Rugendo; Defendant: Johnson Mwandawiro; Defendant: Godfrey Kizaka; Defendant: John Mwawana; Defendant: Mwamburi Mwakangalu; Defendant: Danson Mwakangalu
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 255 of 2007
- Procedural Posture
- Civil Suit / Ruling on Costs After Suit Overtaken by Events
- Outcome
- Suit marked as settled with costs to the plaintiffs.
- Legal Topics
- Costs Award, Injunctions, Burial Rights, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Col. Josiah Landy Mrashui
Plaintiff
Samuel Kalema Mrashui
Plaintiff
Clement Mulemwa Rugendo
Defendant
Johnson Mwandawiro
Defendant
Godfrey Kizaka
Defendant
John Mwawana
Defendant
Mwamburi Mwakangalu
Defendant
Danson Mwakangalu
Defendant
Procedural Posture
Civil Suit / Ruling on Costs After Suit Overtaken by Events
Legal Issues
- 1 Whether the plaintiffs are entitled to costs after the suit was overtaken by events and marked as settled.
- 2 Whether the court should exercise its discretion to order each party to bear its own costs in light of the parties' familial relationship.
Ratio Decidendi
The court held that, although it has discretion under Section 27(1) of the Civil Procedure Act to determine who should bear costs, the general rule is that costs follow the event. The court found that the plaintiffs were compelled to file the suit due to the defendants' actions, and the subsequent settlement of the suit did not alter the fact that the plaintiffs were justified in seeking relief. The court rejected the argument that familial relations should override the statutory principle on costs, concluding that the law did not envisage such an exception. Accordingly, the court exercised its discretion in favour of the plaintiffs and awarded them costs of the suit.
Court Disposition
Suit marked as settled with costs to the plaintiffs.
Orders
- The suit is marked as settled.
- Costs of the suit are awarded to the plaintiffs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Suit 255 of 2007
COL. JOSIAH LANDY MRASHUI ………..………………………PLAINTIFF
VERSUS
CLEMENT MULEMWA RUGENDO
JOHNSON MWANDAWIRO
GODFREY KIZAKA
JOHN MWAWANA
MWAMBURI MWAKANGALU
DANSON MWAKANGALU …………………………………DEFENDANTS
R U L I N G
By the plaint dated 29th October 2007, Col. Josiah Landy Mrashui and Samuel Kalema Mrashui suing as the legal representatives of the Estate of Laban Mrashui deceased sought for judgment against Clement Rugendo and 6 others as follows:
(a)An order of injunction to restrain the defendants from burying the body of David Rugendo, deceased, on Plot No. Ronge/Nyika/522.
(b)An order of declaration that the intended burial is unlawful, illegal and an affront of sanctity of ownership of land.
(c)Costs of the suit.
Pending the hearing of the aforesaid suit the plaintiffs successfully obtained an interim order of injunction. While this suit is still pending, the defendants caused the body of David Rugendo, deceased, to be interred on another piece of land. Mssrs Odongo and Opulu, learned advocates for the plaintiffs and defendants respectively are in agreement that the suit has been overtaken by events in that the body of David Rugendo has been interred in another parcel of land other than Plot No. Ronge/Nyika/522. The learned advocates were of the view that the suit should be marked as settled save for the issue touching on costs.
Learned advocates were invited to make submissions to enable this court determine the issue. Mr. Odongo, learned advocate for the plaintiffs urged this court to give the plaintiffs costs. He based his arguments on Section 27 of the Civil Procedure Act in which the law states that costs shall follow the event. It is Mr. Odongo’s argument that the defendants should be condemned to pay costs of the suit because they are the ones who provoked the plaintiffs to file this suit. It is averred that had the defendants heeded the plaintiffs’ demand to halt the burial arrangements they would not have taken up these proceedings.
Mr. Opulu, learned advocate for the defendants is of the view that this court should issue an order directing each party to bear its own costs. He urged this court to take into account the fact that the litigants are relatives hence the order for costs may destroy the on going reconciliation and the healing process between them
I have considered the oral submissions made by learned counsels from both sides. There is no doubt that under S.27 (1) of the Civil Procedure Act, the court is given an unfettered discretion to determine who to pay costs otherwise costs should follow the event. I have been urged to make an order directing each party to pay its own costs so that they may reconcile. I do not think that is what the law envisaged. I am satisfied that in the circumstances of this case costs should follow the event. I approve the order marking the suit as settled with costs to the plaintiffs.
Dated and delivered at Mombasa this 8th day of June 2009.
J.K. SERGON
J U D G E