[2017] KEELC 3227 (KLR)
The court found that the case was not determined on its merits and that neither party could be considered the successful party, as the evidence was not tested and the matter was compromised before a determination on the substantive issues. The court noted that the debt had not been fully repaid and that the borrower...
Source-derived case information.
- Citation
- [2017] KEELC 3227 (KLR)
- Parties
- Plaintiff: Duncan Kibet Kirong; Defendant: Consolidated Bank (K) Ltd; Defendant: Protus Wanga t/a Timeless Dolphin Auctioneers; Defendant: Lomson Enterprises Ltd
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 16 of 2015
- Procedural Posture
- Land and Property Suit / Ruling on Costs
- Outcome
- Each party to bear own costs.
- Judges
- A Ombwayo
- Legal Topics
- Costs Award, Statutory Power of Sale, Compromise of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Duncan Kibet Kirong
Plaintiff
Consolidated Bank (K) Ltd
Defendant
Protus Wanga t/a Timeless Dolphin Auctioneers
Defendant
Lomson Enterprises Ltd
Defendant
Procedural Posture
Land and Property Suit / Ruling on Costs
Legal Issues
- 1 Who should bear the costs of the suit after compromise by the parties.
- 2 Whether the plaintiff or defendants can be considered the successful party for purposes of awarding costs.
- 3 Whether the statutory power of sale was exercised in accordance with the law.
Ratio Decidendi
The court found that the case was not determined on its merits and that neither party could be considered the successful party, as the evidence was not tested and the matter was compromised before a determination on the substantive issues. The court noted that the debt had not been fully repaid and that the borrower was in arrears, but it was not possible to ascertain whether the defendants had followed the correct procedure in exercising the statutory power of sale. Given the compromise and absence of a clear successful party, the court exercised its discretion to order that each party bear its own costs.
Court Disposition
Each party to bear own costs.
Orders
- Each party shall bear its own costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E & L CASE NO. 16 OF 2015
DUNCAN KIBET KIRONG……………………………….....PLAINTIFF
VERSUS
CONSOLIDATED BANK (K) LTD…………..………1ST DEFENDANT
PROTUS WANGA T/A TIMELESS
DOLPHIN AUCTIONEERS……………….…….......2ND DEFENDANT
LOMSON ENTERPRISES LTD………………........3RD DEFENDANT
RULING
The issue before court is who is to pay costs. The plaintiff submits that he was the successful party and therefore, should be awarded costs. According to the plaintiff, costs follow event and are normally in the court’s discretion. The plaintiff argues that were it not for the defendants’ action of advertising for sale, the plaintiff’s property that necessitated the filing of this suit to restrain the defendants from advertising for sale his parcel of land No. Kapseret/Lemook and Chepkatet Block 1(Inder) 418 without following the laid down procedures in law, then the plaintiff would not have brought this suit.
The defendant submits that the suit took a different course out of negotiation in good faith that resulted in a consent that allowed two more parties to join the suit as co-plaintiffs and the debt was assigned to them. According to the defendant, the plaintiff admitted indebtedness and therefore, should pay costs.
I have considered the rival submissions of parties and do find that this case was not determined on merit. It is difficult to find that either the plaintiff or defendant was successful party as their evidence was not tested. It is not possible to ascertain that the defendants followed the right procedure in exercising statutory power of sale, however, it is evident that the debt had not been repaid in full and that the borrower was in arrears.
In such matters, the court is called upon to ensure that before the chargee exercises his statutory power of sale, sections 90 and 96 of the Land Act has been complied with. In this case, parties decided to compromise the suit before the court could ascertain who is on the wrong.
Ultimately, the court finds that in such a situation, each party should bear own costs.
DATED AND DELIVERED AT ELDORET THIS 31 DAY OF MARCH, 2017.
A. OMBWAYO
JUDGE