[2020] KEHC 4990 (KLR)
The court found that since the defendant did not oppose the suit and the plaintiff successfully prosecuted its claim to take possession of the security property, there was no reason to depart from the general rule under section 27 of the Civil Procedure Act that costs follow the event. The defendant's default...
Source-derived case information.
- Citation
- [2020] KEHC 4990 (KLR)
- Parties
- Plaintiff: Guardian Bank Limited; Defendant: Nangwale Mwenya Muniafu t/a Muniafu & Company Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 180 of 2019
- Procedural Posture
- Civil Case / Ruling on Costs After Possession Order Granted
- Outcome
- Costs awarded to the plaintiff.
- Judges
- DAS Majanja
- Legal Topics
- Costs Award, Possession of Security Property, Statutory Remedies
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Guardian Bank Limited
Plaintiff
Nangwale Mwenya Muniafu t/a Muniafu & Company Advocates
Defendant
Procedural Posture
Civil Case / Ruling on Costs After Possession Order Granted
Legal Issues
- 1 Whether the plaintiff is entitled to costs of the suit after successfully prosecuting an unopposed claim for possession of the security property.
Ratio Decidendi
The court found that since the defendant did not oppose the suit and the plaintiff successfully prosecuted its claim to take possession of the security property, there was no reason to depart from the general rule under section 27 of the Civil Procedure Act that costs follow the event. The defendant's default necessitated the suit, and no good reason was shown to deny the plaintiff its costs. Accordingly, the defendant was ordered to bear the costs of the suit.
Court Disposition
Costs awarded to the plaintiff.
Orders
- The defendant shall bear the costs of the suit.
Full Case Text
Judgment text and source record
29 paragraphs
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
COMMERCIAL AND TAX DIVISION
CORAM: D. S. MAJANJA J.
CIVIL CASE NO. 180 OF 2019 (OS)
IN THE MATTER OF THE LAND ACT, 2012
AND IN THE MATTER OFOFFICE GRID NOS. 60 & 61 AND PENTHOUSE NO. 60
ON THE 4TH FLOOR OFBUILDING ERECTED ON LR NO. 209/18869 – NAIROBI
AND IN THE MATTER OF AN APPLICATIONBY A CHARGEE TO ENTER INTO
AND TAKE POSSESSION OFA SECURITY PROPERTY
BETWEEN
GUARDIAN BANK LIMITED...................................................................................................PLAINTIFF
AND
NANGWALE MWENYA MUNIAFU T/A MUNIAFU& COMPANY ADVOCATES....DEFENDANT
RULING NO. 2
Background
1. The plaintiff filed the originating summons dated 25th July 2019 against the defendant seeking, inter alia, leave to enter into and take possession of Office Grid No. 60 and 61 and Penthouse No. 60 on the 4th floor on the building erected on Nairobi LR No. 209/18869 (“suit property”).
2. Since the defendant did not oppose the suit by way of a replying affidavit, on 3rd February 2020, I granted the plaintiff leave to take possession of the suit property but stayed the order for a period of 45 days. The only issue left for determination is the award of costs.
3. The award of costs in civil proceedings is governed by section 27 of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which states as follows:
27(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 who 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.
4. The record is clear that the defendant did not oppose the suit but requested for time to make arrangements to settle the debt due to the plaintiff. It is because of the defendant’s default that the plaintiff proceeded to file suit in order to exercise one of its statutory remedies. The plaintiff prosecuted the suit successfully. The defendant has not shown any reason why the court should depart from the general rule in section 27 aforesaid that costs for follow the event.
5. The defendant shall therefore bear the costs of the suit.
DATEDandDELIVEREDatNAIROBIthis15th day of JUNE 2020.
D. S. MAJANJA
JUDGE
Mr Mutua instructed by Mutua Waweru and Company Advocates for the plaintiff.