https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3805

Fave Gas Oil K Ltd v Meru County Investment & Development Corporation & another (Environment and Land Case E007 of 2026) [2026] KEELC 3805 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEELC 3805 (KLR) Republic of Kenya In the Environment and Land Court at Meru Environment and Land Case E007 of 2026 BM Eboso, J June 18, 2026 Between Fave Gas Oil K Ltd Plaintiff and Meru County Investment & Development Corporation 1st Defendant The County Government of Meru 2nd Defendant Judgment 1.The plaintiff initiated this suit against the defendants vide a plaint dated 24/2/2026. They alleged that the defendants were in breach of a lease agreement dated 25/2/2021 between them and the 1st defendant, relating to a parcel of land which they described as PDP/167/2016/01 (UNS Plot G for Offices). Among other reliefs ,they sought a declaration that the actions of the defendants constituted a breach of the contract. In addition, they sought a permanent injunction restraining the defendants against committing a breach of the lease. 2.Together with the plaint, the plaintiff brought a notice of motion dated 24/2/2026 seeking interlocutory injunctive orders against the defendants. The Court issued disposal directions on the application on 27/2/2026 and listed it for interpartes hearing on 28/4/2026. Come 28/4/2026, Ms Nyokabi (Counsel for the plaintiff) informed the court in the presence of Mr Kanyumoo (Counsel for the defendants) that parties had reached a settlement and she had instructions to withdraw the suit with no order as to costs. On his part, Mr Kanyumoo informed the court that he did not have instructions relating to the settlement. He asked the court to give the parties a mention date. The court listed the matter for mention on 12/5/2026. 3.On 12/5/2025, counsel for the plaintiff orally applied to withdraw the suit with no order as to costs. Counsel for the defendants acceded to the oral plea to withdraw the suit but insisted on the defendants being awarded costs of the suit. Vide an ex-tempore ruling dated 12/5/2026, the court marked the suit “withdrawn” and reserved the issue of costs to be determined upon the parties tendering affidavit evidence and submissions. 4.Subsequent to that, the plaintiff filed an affidavit sworn on 12/6/2026 by James Mungai Mbugua. The defendants did not file any affidavit [the court notes that in his oral submissions, counsel for the defendants informed the court that they had filed an affidavit dated 15/6/2026. No such affidavit is reflected in the Case Tracking System]. Through their affidavit, the plaintiff contended that the defendants were not entitled to costs because they had not served them with any filings in the suit. Citing Order 6 rule 2 and Order 10 rule 3 of the Civil Procedure Rules, the plaintiff asserted that service of the memorandum of appearance within 7 days was mandatory. Counsel argued that in the absence of service of the memorandum of appearance, there was no basis for an award of costs. 5.The defendants filed written submissions dated 29/5/2026 and also tendered oral submissions. The case of the defendants is that they are entitled to costs because on 12/3/2026 they filed a preliminary objection through the Judiciary Case Tracking System. They add that on 28/4/2026, they attended court through counsel. They add that on 12/5/2026, instead of responding to the preliminary objection, the plaintiff withdrew the suit. Citing Section 27 of the Civil Procedure Act, the defendants argue that costs follow the event. They invite the court to invoke the general principle and award them costs of the withdrawn suit. 6.In his oral submissions, counsel for the defendants submitted that the defendant filed their preliminary objection on 12/3/2026 and subsequently filed a memorandum of appearance on 28/4/2026. Counsel admitted that the defendants did not serve the two documents on the plaintiff. He contended that, notwithstanding the defendants’ failure to serve the two documents, the plaintiff had “actual knowledge” of the two documents because when they attended court on 28/4/2026 they did not raise any issue relating to service. Counsel argued that the plaintiff applied to withdraw the suit on 28/4/2026 because they had seen the defendants’ preliminary objection. Counsel urged the court to be guided by Order 25 rule 3 of the Civil Procedure Rules and award the defendants costs of the suit. 7.The only issue that falls for determination in this ruling is whether the defendants are entitled to an award of costs of this suit. I have considered the affidavit presented by the plaintiff and the rival submissions tendered on the issue. The general principle on costs has been legislated and is contained in Section 27 of the Civil Procedure Act which provides as follows:“(1)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, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: 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.(2)The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.” 8.In Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, Petition No 4 of 2012 (2014) eKLR, the Supreme Court of Kenya outlined the prevailing jurisprudence on costs as follows:“So the basic rule on attribution of costs is: costs follow the event. But it is well recognized that this principle is not to be used to penalize the losing party; rather, it is for compensating the successful party for the trouble taken in prosecuting or defending the suit. In Justice Kuloba’s words [Judicial Hints on Civil Procedure, at p 94]: “[T]he object of ordering a party to pay costs is to reimburse the successful party for amounts expended on the case. It must not be made merely as a penal measure.. .Costs are a means by which a successful litigant is recouped for expenses to which he has been put in fighting an action.” 9.There is no dispute about the fact that the plaintiff served court papers on the defendants on 3/3/2026, inviting them to enter appearance or appoint counsel; file responses; and attend court for the hearing of the application on 28/4/2026. The defendants thereafter filed a preliminary objection dated 12/3/2026 on 12/4/2026. They did so without first filing a notice of appointment or a memorandum of appearance. Secondly, the defendants elected not to serve the irregular notice of preliminary objection. The morning that the defendants ultimately filed their memorandum of appearance is the very morning that the plaintiff applied to withdraw the suit with no order as to costs. Even at that point, and up to the time of making submissions on the issue of costs, the defendants had not bothered to serve the memorandum of appearance and the irregular preliminary objection. These are the only documents which the defendants filed in the suit. They are the only documents that the defendants are relying on to seek costs against the plaintiff. Yet they elected not to serve the documents on the plaintiff. 10.The preliminary objection dated 12/3/2026 can not be the basis of an award of costs because it was a document that stood to be struck out for having been filed by counsel who had neither filed a notice of appointment nor filed a memorandum of appearance. It was a document that had been filed by an advocate who was not on record at the time; it was filed by a stranger. 11.With regard to the memorandum of appearance filed on 28/4/2026, the court record shows that the very morning that it was filed, this matter was before court and the plaintiff applied to withdraw the suit. The only reason why the withdrawal order was not made that morning is that, counsel who addressed the court on behalf of the defendants asked for a mention date to enable him take instructions. Thereafter, the defendants did not bother to serve the memorandum of appearance. The plaintiff proceeded to withdraw the suit on 12/5/2026 and urged the court not to make any award of costs because not a single document had been served on them by the defendants. 12.Given the above circumstances, the court takes the view that the defendants denied themselves the entitlement to costs by failing to serve their filed documents [memorandum of appearance and preliminary objection]. Consequently, the court makes a finding that the defendants are not entitled to costs in this suit because they did not serve their only two filed documents on the plaintiff. 13.The result is that this suit is marked “Withdrawn with no order as to costs”. DATED, SIGNED AND DELIVERED AT MERU THIS 18TH DAY OF JUNE, 2026B M EBOSO [MR]ELC JUDGE