https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7039

Chebukati v Airtel Networks Kenya Limited (Commercial Case E356 of 2026) [2026] KEHC 7039 (KLR) (Commercial and Tax) (18 May 2026) (Ruling) Neutral citation: [2026] KEHC 7039 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case E356 of 2026 RC Rutto, J May 18, 2026 Between Emmanuel Chebukati Applicant and Airtel Networks Kenya Limited Respondent Ruling 1.This ruling concerns the issue of costs following the withdrawal of an application that was rendered unnecessary by the subsequent conduct of the Respondents. 2.By a Miscellaneous Application dated 26th March, 2026, the Applicant moved this Court seeking various orders, including a directive compelling the Respondents to release statements of account and full transaction details relating to Airtel number +25473xxxxx4 for the period between 1st September, 2025, and 30th January, 2026. 3.The Applicant avers that the application was duly served upon the Respondents both electronically and physically, but that the Respondents neither entered appearance nor filed any response. Instead, the Respondents proceeded to comply with the substance of the application by furnishing the requested documentation on or about 16th April, 2026. 4.As a result of that compliance, the Applicant’s application was overtaken by events and was subsequently withdrawn. The only issue now remaining for determination, is whether the Applicant is entitled to costs of the application. 5.The Applicant submits that it is entitled to costs on the grounds that: prior to instituting the application, it had issued a demand letter to the Respondents which went unanswered; the Respondents only complied with the request after the application had been filed and served and that had the Respondents acted upon the demand or responded promptly, the application would have been unnecessary. The Applicant therefore urges the Court to exercise its discretion in its favour and award costs. 6.The principles governing the award of costs are well settled. Under Section 27 of the Civil Procedure Act, costs follow the event, unless the Court, in its discretion, for good reason, orders otherwise. The exercise of this discretion must be judicial, guided by the circumstances of each case. 7.The question that arises is whether the Respondents’ conduct justifies an award of costs in favour of the Applicant. On the one hand, the Applicant argues that the Respondents’ failure to respond to the demand letter necessitated the filing of the application. On the other hand, it is evident that the Respondents ultimately complied without contest, thereby obviating the need for further judicial intervention. 8.In my view, the Court must balance two competing considerations. In the circumstances of this case, I note that although the Respondents did not respond to the demand, they nevertheless complied shortly after being served with the application, and did so without contesting the proceedings or causing further delay. This facilitated the expeditious resolution of the dispute and conserved judicial time. 9.This compliance effectively avoided the need for a substantive determination of the matter. The Court is therefore not persuaded that the Respondents acted in a manner warranting the sanction of costs. 10.Further, the application did not proceed to hearing, and no substantive determination was made. I am therefore inclined to decline costs where the matter is resolved without contest and without the need for substantive determination. 11.In view of the foregoing, and in the exercise of this Court’s discretion, I find that this is not a proper case for the award of costs. The Applicant’s request for costs is declined. Each party shall bear its own costs. DELIVERED, DATED AND SIGNED VIRTUALLY THIS 18TH DAY OF MAY, 2026RHODA RUTTOJUDGEIn the presence of;Court Assistant: WabwireMr. Maramba for Applicant