[2018] KEELC 2337 (KLR)
The court held that the general rule is that costs follow the event, meaning the unsuccessful party should pay the successful party's costs. The plaintiffs, having instituted the suit without proper basis and later withdrawing it upon realizing their mistake, were responsible for the defendant's costs. The court...
Source-derived case information.
- Citation
- [2018] KEELC 2337 (KLR)
- Parties
- Plaintiff: Ignatius Musungu Obara; Plaintiff: Ruth Chila Kwalanda; Defendant: Maximilla Atieno Luchacha
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 46 of 2017
- Procedural Posture
- Land and Environment Case / Ruling on Costs After Withdrawal of Suit
- Outcome
- Defendant awarded full costs; plaintiffs to pay costs of the suit.
- Judges
- A Kaniaru
- Legal Topics
- Costs Award, Withdrawal of Suit, Land Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ignatius Musungu Obara
Plaintiff
Ruth Chila Kwalanda
Plaintiff
Maximilla Atieno Luchacha
Defendant
Procedural Posture
Land and Environment Case / Ruling on Costs After Withdrawal of Suit
Legal Issues
- 1 Whether the defendant is entitled to full costs after the plaintiffs withdrew the suit.
- 2 Whether the plaintiffs' status as victims of fraud constitutes sufficient reason to depart from the general rule that costs follow the event.
Ratio Decidendi
The court held that the general rule is that costs follow the event, meaning the unsuccessful party should pay the successful party's costs. The plaintiffs, having instituted the suit without proper basis and later withdrawing it upon realizing their mistake, were responsible for the defendant's costs. The court rejected the plaintiffs' appeal for sympathy, emphasizing that the judicial process is governed by law, not sentiment. The defendant had to expend resources to defend herself, and it would be unjust to deprive her of costs due to the plaintiffs' error. The court found no sufficient reason to depart from the established principle and ordered the plaintiffs to pay the defendant's...
Court Disposition
Defendant awarded full costs; plaintiffs to pay costs of the suit.
Orders
- The defendant is awarded her costs in full.
- The plaintiffs shall pay the defendant's costs of the suit.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA IN BUSIA
ENVIRONMENT AND LAND COURT
ELCNO. 46 OF 2017
IGNATIUS MUSUNGU OBARA........................................1ST PLAINTIFF
RUTH CHILA KWALANDA.............................................2ND PLAINTIFF
VERSUS
MAXIMILLA ATIENO LUCHACHA..................................DEFENDANT
R U L I N G
1. The issue for determination before me is one of Costs. The two Plaintiffs in the case – IGNATIUS MUSUNGU OBARAand RUTH CHILA KALWANDA – sued the Defendant – MAXIMILA ATIENO LUCHACHA – alleging, interalia, that she had entered into their land parcel No. BUKHAYO/KISOKO/6042 – and ploughed it with a view to planting some crops. The Plaintiff sought a permanent injunction against the Defendant, costs of the suit and/or other just relief.
2. Contemporaneously with the suit was also filed an application, which was a motion on notice, seeking, interalia, temporary restraining orders. The Defendant defended both the suit and the application.
3. Later on, it transpired that the Plaintiffs had filed the suit on the mistaken premise that they owned the land and that the Defendant was using it. It later turned out that the Plaintiffs were victims of an elaborate con game leading to loss of a tidy sum of money. The Plaintiffs realized the futility of pursuing this case and withdrew it on 8/11/2017. The Defendant asked for costs but the Plaintiff was only willing to pay half costs. And because there was no agreement on the issue, the court asked both sides to file submissions.
4. The Plaintiffs’ submissions were filed on 21/11/2017. The thrust of the submissions seems geared towards obtaining sympathy. The fact that the Plaintiffs were conned was emphasized. The Defendant on the other hand filed submissions on 23/11/2017. The Defendant’s approach was decidedly legal. According to the Defendant, the Plaintiff was to blame for everything. It was pointed out that had the Plaintiffs served a demand notice on the Defendant before instituting the suit, a response would have been made to make them re-think their stand. It was pointed out too that even after the Defendant filed her pleadings, the Plaintiffs insisted on proceeding with the suit.
5. The appeal for sympathy does not endear itself to the Defendant. It was observed that the Plaintiffs can have recourse to those who misled them. For guidance, the Defendant availed a ruling in the case of CECILIA KARURU NGAYU Vs BARCLAYS BANK OF KENYA & Another: HCC No. 17/2014, NYERI.It is a well-researched ruling that extensively points out the law on costs. And the overall point made is that costs are at the discretion of the court and should always follow the event unless for good reason the court decides to rule otherwise.
6. I have considered the rival submissions. This is a court of law, not of sympathy. The law is as stated by the Defendant. Costs always follow the event. The Plaintiffs dragged the Defendant to court. To defend the suit, the Defendant expended time, energy, expertise and money. And when the Plaintiffs realized that their case was founded on quicksand, they withdrew it. A question arises: who will pay the costs incurred by the Defendant? And the answer is simple: only the Plaintiffs can pay the costs incurred. They are duty-bound to do so because of needlessly dragging the Defendant to court.
7. The court cannot be told to hold otherwise on grounds of sympathy. If the Plaintiffs wanted sympathy, they should have approached the Defendant directly or through counsel to get it from her. The court should not be seen to be trading the Defendant’s entitlement to costs for sympathy. I therefore order that the Defendant gets her costs in full. She cannot be made to suffer for the Plaintiffs’ mistake.
Dated, signed and delivered at Busia this 23rd day of July, 2018.
A. K. KANIARU
JUDGE
In the Presence of:
1st Plaintiff: .................................................
2nd Plaintiff: ................................................
Defendant: ...................................................
Counsel of Plaintiffs.....................................
Counsel of Defendant...................................