[2017] KEELC 856 (KLR)
The court allowed the applicant to withdraw the application for transfer but held that the applicant must pay the respondent's costs. The rationale was that the respondent had already responded to the application and incurred costs, and since the applicant initiated the proceedings, he should bear the costs...
Source-derived case information.
- Citation
- [2017] KEELC 856 (KLR)
- Parties
- Applicant: Jared Mukhwana Chimau; Respondent: Benson Wycliffe Wanzala
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 137 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Withdrawal and Costs
- Outcome
- Application withdrawn with costs to the respondent.
- Judges
- A Kaniaru
- Legal Topics
- Transfer of Suit, Monetary Jurisdiction, Withdrawal of Application, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jared Mukhwana Chimau
Applicant
Benson Wycliffe Wanzala
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Withdrawal and Costs
Legal Issues
- 1 Whether the application for transfer of the suit from the lower court to the High Court should be allowed.
- 2 Whether the applicant should be allowed to withdraw the application without paying costs to the respondent.
Ratio Decidendi
The court allowed the applicant to withdraw the application for transfer but held that the applicant must pay the respondent's costs. The rationale was that the respondent had already responded to the application and incurred costs, and since the applicant initiated the proceedings, he should bear the costs associated with the withdrawal. The court found no sufficient reason to excuse the applicant from paying costs, emphasizing the principle that costs follow the event and that a party who drags another to court should not escape liability for costs when withdrawing an application after the other party has participated.
Court Disposition
Application withdrawn with costs to the respondent.
Orders
- The applicant is allowed to withdraw his application.
- The applicant shall pay the costs of the application to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA IN BUSIA
LAND & ENVIRONMENTAL DIVISION
MISC. APPLICATIONNO. 137 OF 2016
JARED MUKHWANA CHIMAU...................................APPLICANT
VERSUS
BENSON WYCLIFFE WANZALA............................RESPONDENT
R U L I N G
1. The application before me is a Notice of Motion dated 9/11/2016 filed here on the same date by the Applicant – JARED MUKHWANA CHIMAU.It seeks, inter alia, transfer to this court of case No. BUSIA CMCC No. 416 of 2012for hearing and determination. The application is brought under Order 51 Rule 1, 3, 4, 8, 10(1) and Sections 3, 3A and 63(e) of Civil Procedure Rules and Civil Procedure Act (cap 21) respectively. It was brought against the Respondent – BENSON WYCLIFFE WANZALA.
2. In the lower court, the dispute is said to revolve around two parcels of land: BUKHAYO/LUPIDA/1760 and BUKHAYO/LUPIDA/1818. The value of the two parcels of land is said to exceed what the lower court can handle. But I need to point out that though the application mentions two parcels of land as the subject of the dispute, the plaint availed only mentions land parcel No. BUKHAYO/LUPIDA/1760. It is not clear where the Applicant got the other parcel: BUKHAYO/LUPIDA/1818. I appreciate however that the parcels could possibly be mentioned in pleadings of that case that were not availed here.
3. The Respondent responded to the application vide grounds of opposition dated 7/6/2017 and filed on 8/6/2017. He averred that the suit is properly before the lower court; that there is no evidence to show that the value of the land is beyond the monetary jurisdiction of the lower court; and that no basis is laid for transfer of the case to this court.
4. The application was canvassed by way of written submissions. The Applicant submissions were filed on 17/10/2017. The Applicant asked the court to be allowed to withdraw his application with no penalty as to costs.
5. The Respondent on the other hand submitted that the Applicant application should be dismissed with costs.
6. I have considered the application, response made, and rival submissions. I wish not to dwell much on the merits of what each side said. And this is because the Applicant has proposed to withdraw the application. The Applicant however feels that he should not be made to pay costs. I agree with the Applicant on the issue of withdrawal but disagree with him on the issue of costs. The Respondent’s side has already responded to the application and has incurred costs. It is the Applicant who dragged the Respondent here. He should not therefore be excused on the issue of costs.
7. The Applicant is therefore allowed to withdraw his application. He should however pay the incurred costs of the application to the Respondent.
Dated, signed and delivered at Busia this 29th day of November, 2017.
A. K. KANIARU
JUDGE
In the Presence of:
Applicant: …………….……..…
Respondent: ………………..…..………………..…..…………
Counsel of Applicant: …………………..……..…………………
Counsel of Respondent: ………..……………..……..….………