[2020] KEELC 2511 (KLR)
The court found that the plaintiff did not file a reply to the defence or the counterclaim and did not demonstrate having incurred any costs in relation to the counterclaim. Furthermore, neither party addressed the counterclaim during the hearing. As costs are discretionary and must be justified, the court held that...
Source-derived case information.
- Citation
- [2020] KEELC 2511 (KLR)
- Parties
- Plaintiff: Daniel Kamau Karera; Defendant: Catherine Wangari Nyagah
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 312 of 2013
- Procedural Posture
- Civil Case / Ruling on Notice of Motion to Amend Judgment Regarding Costs on Counterclaim
- Outcome
- application dismissed
- Judges
- LC Komingoi
- Legal Topics
- Amendment of Judgment, Costs Award, Counterclaim Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Kamau Karera
Plaintiff
Catherine Wangari Nyagah
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion to Amend Judgment Regarding Costs on Counterclaim
Legal Issues
- 1 Whether the judgment should be amended to include an order on costs for the dismissed counterclaim.
- 2 Whether the plaintiff incurred costs in relation to the counterclaim.
Ratio Decidendi
The court found that the plaintiff did not file a reply to the defence or the counterclaim and did not demonstrate having incurred any costs in relation to the counterclaim. Furthermore, neither party addressed the counterclaim during the hearing. As costs are discretionary and must be justified, the court held that there was no basis to amend the judgment to include an order on costs for the counterclaim. The application was therefore dismissed, and each party was ordered to bear their own costs.
Court Disposition
application dismissed
Orders
- The application to amend the judgment to include costs on the counterclaim is dismissed.
- Each party to bear their own costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CIVIL CASE NO. 312 OF 2013
DANIEL KAMAU KARERA...................................................PLAINTIFF
=VERSUS=
CATHERINE WANGARI NYAGAH...................................DEFENDANT
RULING
1. This is the Notice of Motion dated 25th April 2019 brought under section 27 and 99 of the Civil Procedure act.
2. It seeks orders:-
1. That the judgment delivered on 28th March 2019 by Lady Justice L. Komingoi be amended to include the issue of costs on the counterclaim that was dismissed
3. The application is supported by the affidavit of Kabaru Ndegwa, advocate for the plaintiff/applicant sworn on the 25th April 2019.
4. The application is opposed. There is a replying affidavit sworn by Gachoka Mwangi, Advocate for the defendant/respondent sworn on the 29th April 2020.
5. On the 22nd January 2020, counsel informed the court they did not intend to submit but were relying on the affidavits filed.
6. I have considered the notice of motion and the affidavit in support. I have also considered on the replying affidavit. The issue for determination is whether this application is merited. I have gone through the court record and find that the plaintiff did not file a reply to defence and defence to the counterclaim. The plaintiff therefore did not incur any costs. I agree with counsel for the defendant that none of the parties alluded to the counterclaim during the hearing. The plaintiff has not demonstrated that he incurred any costs in respect of the counterclaim. Costs are allowed at the discretion of the court. I find no merit in this application and the same is dismissed. Each party do bear own costs.
It is so ordered.
Dated, signed and delivered in Nairobi on this 21ST day of MAY 2020.
...............................
L. KOMINGOI
JUDGE
In the presence of:-
Mr. Kabaru Ndegwa for the Plaintiff
No appearance for the Defendant
Kajuju-Court Assistant