[2018] KEELC 2352 (KLR)
The court found that the petitioner was responsible for initiating the suit and then failing to prosecute it for several years, resulting in unnecessary delay and inconvenience to the respondents. The court held that the blame for the stagnation of the case lay with the petitioner, and that the respondents should...
Source-derived case information.
- Citation
- [2018] KEELC 2352 (KLR)
- Parties
- Applicant: David Mungiria Mwango; Respondent: District Adjudication & Demercation Officers Tigania West; Respondent: Attorney General; Respondent: Rose Mwendwa Mugambi; Respondent: Isaiah Igwathu; Respondent: Mwongera William; Respondent: Elias Mwenda M’Minyori
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Petition 37 of 2011
- Procedural Posture
- Constitutional Petition / Ruling on Costs After Withdrawal
- Outcome
- Petitioner to pay costs to the respondents.
- Legal Topics
- Costs Award, Withdrawal of Suit, Court Discretion on Costs, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Mungiria Mwango
Applicant
District Adjudication & Demercation Officers Tigania West
Respondent
Attorney General
Respondent
Rose Mwendwa Mugambi
Respondent
Isaiah Igwathu
Respondent
Mwongera William
Respondent
Elias Mwenda M’Minyori
Respondent
Procedural Posture
Constitutional Petition / Ruling on Costs After Withdrawal
Legal Issues
- 1 Whether the petitioner should be condemned to pay costs after withdrawal of the suit.
- 2 Whether the delay and inactivity in prosecuting the case justifies an award of costs to the respondents.
Ratio Decidendi
The court found that the petitioner was responsible for initiating the suit and then failing to prosecute it for several years, resulting in unnecessary delay and inconvenience to the respondents. The court held that the blame for the stagnation of the case lay with the petitioner, and that the respondents should not be penalized for the petitioner's inaction. Applying Section 27 of the Civil Procedure Act, the court exercised its discretion to award costs to the respondents, finding no sufficient reason to depart from the general rule that costs follow the event. The withdrawal of the suit did not absolve the petitioner from liability for costs, especially given the history of delay and...
Court Disposition
Petitioner to pay costs to the respondents.
Orders
- Petitioner shall pay the costs of the suit to the respondents.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC PETITION NO. 37 OF 2011
DAVID MUNGIRIA MWANGO ................................................... PETITIONER
VERSUS
DISTRICT ADJUDICATION & DEMERCATION
OFFICERS TIGANIA WEST ............................................... 1ST RESPONDENT
ATTORNEY GENERAL ....................................................... 2ND RESPONDENT
ROSE MWENDWA MUGAMBI ......................................... 3RD RESPONDENT
ISAIAH IGWATHU ............................................................... 4TH RESPONDENT
MWONGERA WILLIAM .................................................... 5TH RESPONDENT
ELIAS MWENDA M’MINYORI ......................................... 6TH RESPONDENT
RULING
1. This case was withdrawn on 16. 5.2018. However, the parties did not agree on costs and the court directed that parties file submissions on issue of costs.
2. The submissions of the petitioner are that though this suit was filed in 2011, the prosecution of the case never took off because some parties died. It is also averred that the suit was withdrawn because the subject matter had changed in form and hence this cannot be interpreted as a win for any side. The petitioners proffered the case of J.R No. 6 of 2014 – Republic vs Rosemary Wairimu Munenein advancing the argument that the court has unfettered discretion not to condemn the petitioner in terms of costs.
3. On the side of the respondents, it is averred that when the suit was filed, petitioner did not take any steps to prosecute the same and that at some point the court had even threatened to dismiss the case. Respondents aver that their advocate has made various court attendances and hence they deserve costs.
4. Section 27 of the civil procedure Act 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……..: 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”.
5. I have perused the file in order to discern the nature and extent of petitioner’s effort to prosecute the case. Though the suit was filed on 7. 6.2011, nothing happened for two years until 3. 7.2013 when case was mentioned. The matter was thereafter again mentioned after a duration of another two years in 2015 and this is when the court issued a threat to dismiss the suit. The threat was repeated on 23. 11. 2016.
6. It is the petitioner who dragged the respondents to this court where the case marked time for seven or so years until the subject matter apparently changed form. Blame hence lies on the part of the petitioners.
7. I therefore direct the petitioners to pay costs of this suit to the Respondents.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 18TH DAY OF JULY, 2018 IN THE PRESENCE OF:-
Court Assistant:Janet/Galgalo
Ondari for petitioner
Ogoti holding brief for Murango Mwenda for 3rd, 4th, 5th and 6th respondents
HON. LUCY. N. MBUGUA
ELC JUDGE