https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/268

 **REPUBLIC OF KENYA** **IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI** **TRIBUNAL CASE NO. E510 OF 2025** **(Coram: Hon. J. Mwatsama – Ag. Chairperson, Hon. B. Sawe - Member, Hon. F. Lotuiya - Member, Hon. M. Chesikaw - Member and Hon. P. Aol - Member.)** **HURIMA SACCO LTD…………………………….……………… CLAIMANT** **VERSUS** **ROSELINE OSIMBO KWEYU…………………………………...RESPONDENT** **RULING** 1. Both the parties in this matter before the Tribunal adopted by consent a settlement agreement. The only issue which they did not agree was the issue of costs. When the matter came up before the Tribunal for directions on 3rd April 2026, the parties agreed to canvas the issue of costs by way of written submission. Parties were therefore granted 30 days to file and serve the written submissions. 2. For reasons that is beyond the comprehension of the Tribunal, none of the parties had filed submissions as at the date of writing this ruling. Nonetheless, since the Tribunal is alive to the fact that written submissions do not form part of a party’s pleading, we will proceed to decide on the issue of costs. 3. First, since costs follow the event, it is important to understand the facts and the steps that the parties went through since the inception of the suit. **Brief Facts.** 1. That the Respondent is a member of the Claimant and on 24th May 2022, she applied and was granted a loan of Ksh.2,100,000/= by the Claimant at an interest of 1% per month and payable within a period of 36 months. It was a term in the loan application form that the Respondent was to repay this loan at a rate of Ksh.69,750/= per month. On 8th November 2023 the Respondent applied for a top-up loan of Ksh.500,000/= on similar terms as the earlier loan granted. Both loans were secured by the Respondent’s salary, shares/deposits and Title deed No. Ngong/Ngong/59494. 2. The Claimants’ state that the Respondent repaid her loan till August 2023 then she stopped. As at 27th January 2025, the total outstanding loan together with the interest stood at Ksh.2,630,235.80. 3. The Claimant filed a Statement of Claim dated 28th April 2025 in the Tribunal and sought for following prayers; 4. Special damages of Ksh.2,630235.80 due. 5. Order compelling land registrar Ngong to jointly register the tittle No. Ngong/Ngong/59494 in the names of the title holders and the Claimant. 6. General damages to be assessed at courts rates 7. Costs of the suit. 8. Any further orders that the tribunal may deem fit and appropriate to grant. 9. On record, there is an Affidavit of Service dated 10th July 2025 sworn by Akanga Solomon that he served the Respondent via WhatsApp through her mobile phone no. 0721-521-966 and through her email address; rosekweyu@yahoo.com. 10. On 9th July 2025, the Tribunal entered Interlocutory Judgement in favour of the Claimant against the Respondent and directed that a formal proof hearing be held on 10th November2025. **Respondent’s case** 1. Notice of Appointment dated 1st July 2025 by the Respondent’s counsel was filed. At the same time, a Defence Statement dated 28th June 2025 and a Notice of Motion Application dated 1st July 2025 was filed by the Respondent seeking for orders that; 2. That the suit be struck out and/or dismissed 3. That cost of the suit be provided for. 4. While the Respondent’s Notice of Motion Application dated 1st July 2025 was still pending determination, the Respondents filed another Notice of Motion dated 10th July 2025 seeking for stay and execution of the Interlocutory Judgement and all consequential orders and to be granted unconditional leave to defend the claim. 5. On 15th July 2025, the Tribunal directed the Respondent to serve the Claimants and directed the Claimants to file and serve their response within 14 days upon service, the Respondent was directed to file and serve written submissions within 21 days upon receipt of service of the Claimant’s response. **Analysis & Determination** 1. Having stated earlier that none of the parties filed written submissions, we will rely on the facts of the suit on record to make a determination. The law that govern costs in civil matters is provided under *Section 27(1) of the Civil Procedure Act* which provide as follows: “**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 give all the necessary directions for the purposes aforesaid, and the fact that the court 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 direct”.** 1. In the case of **Republic V. Rosemary Wairimu Munene, Ex-parte Applicant V. Ihururu Dairy Farmers Cooperative Society Ltd**, the court held that: ***“The issue of costs is the discretion of the court as provided under the law. The basic rule on attribution of costs is that costs follow the event---------It is well recognised that the principal costs follow the event is not to be used to penalize the losing party rather it is compensating the successful party for the trouble taken in prosecuting or defending the case”*** 1. With this in mind, it is important to look at the various steps which were taken by the parties in order to appreciate the trouble each party took to prosecute or defence the case from the time the suit was filed. 2. First, the Respondents Notice of Motion dated 10/7/2025 came up for mention on 15th July 2025 the day when Tribunal directed the Claimants and the Respondent’s counsel to file and serve applications and statements to each other. They were each granted 21 days to file and serve written submissions. A mention date was scheduled for 10th November 2025 to confirm compliance. 3. On the said date, both the counsel for the Claimant and the Respondent attended the mention and the Claimant stated that they have not responded to the Notice of Motion dated 10/7/2025. However, the Respondent’s counsel pointed out to the Tribunal that they have two applications pending before the Tribunal, one dated 1st July 2025 and another dated 10th July 2025. At this point, Counsel Akanga for the Claimant made an oral Application to the effect that there is a repayment schedule on pages 12-15 on the Respondent’s Application and sought to have the settlement and repayment schedule to be adopted as an order of the Tribunal. In response, counsel Adier for the Respondent stated thus: *“****we have no objection with the settlement being adopted”*** 1. It was then agreed by both parties that the Claimants counsel will graft a comprehensive consent agreement within one week, file it in the Tribunal and serve the Respondent for adoption in the next mention date. On 11/2/2026, both Counsel Adier and Akanga confirmed that the settlement agreement has been filed and the matter can be marked as settled. 2. At this point, the Claimants sought to be paid costs but the Respondent objected and argue that the matter was settled pursuant to an agreement between the parties dated 28th May 2025. 3. The question that arises is: does the filling of the suit by the Claimant and the responses by the Respondent and the steps taken which led to recording the consent an **“event”** within the phrase **“costs follow the event?”** 4. Justice (retired) Kuloba in his writings on the law of costs state that the word **“the event”** is to be regarded as a collective noun that gives the result of the entire litigation. From the analysis of the events in this litigation, the Tribunal does not discern any much effort which was put by the litigants to arrive at the recording of the consent **“result”**. It is on record that the repayment schedule agreement that was signed on 28th May 2025 is the same agreement that was adopted, therefore there is nothing new that the Claimants can claim to have added/done except to file a Statement of Claim and attend to three (2) mentions. 1. Considering the events of this suit from the time the Claimants filed the Statement of Claim to the Respondents filing of defence and her two Notices of Motion dated 1st July 2025 and 10th July 2025 and the attendance of mentions on 10/11/25 and 11/2/2026 which culminated on the adoption of the consent. We are of the opinion that this cannot qualify to be called the entire proceedings of the suit after all the Claimants did not respond to the Respondents two (2) Notice of Motion referred to above despite being directed by the Tribunal. The matter did not also proceed to hearing. Accordingly, the Tribunal find no reason to award costs to either of the parties. 2. In light of the foregoing, and in the interest of fairness and justice, we order that each of the parties to meet own costs. File ordered closed. Ruling dated and delivered *virtually* at **Nairobi** this **24th** day of **June, 2026.** **Hon. J. Mwatsama Ag.Chairperson Signed 24/6/2026** **Hon. Beatrice Sawe Member Signed 24/6/2026** **Hon. Fridah Lotuiya Member Signed 24/6/2026** **Hon. Michael Chesikaw Member Signed 24/6/2026** **Hon. P. Aol Member Signed 24/6/2026** Court Assistant - Mutai Akanga advocate for the Claimant – No appearance Adier advocate for the Respondent **Hon. J. Mwatsama Ag. Chairperson Signed 24/6/2026**