[2017] KEELC 3207 (KLR)
The court found that the current suit and the previously withdrawn suit involved the same parties and the same cause of action, namely entitlement to land parcel KERICHO/LITEIN/560 by way of adverse possession. The respondent withdrew the earlier suit and was ordered to pay costs, which remain unpaid. Order 25 Rule...
Source-derived case information.
- Citation
- [2017] KEELC 3207 (KLR)
- Parties
- Plaintiff: John Kibet Kibor; Defendant: Daniel Kiplangant Chepkwony
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Suit 72 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Suit Pending Payment of Costs
- Outcome
- Application allowed. Suit stayed until payment of costs in HCCC No 36 of 2014. Costs of the application awarded to the applicant.
- Judges
- DO Ogal
- Legal Topics
- Stay of Proceedings, Costs of Suit, Adverse Possession, Withdrawal of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kibet Kibor
Plaintiff
Daniel Kiplangant Chepkwony
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Suit Pending Payment of Costs
Legal Issues
- 1 Whether the suit should be stayed pending payment of costs from a previously withdrawn suit involving the same cause of action.
- 2 Whether Order 25 Rule 4 of the Civil Procedure Rules applies to bar the respondent from proceeding before paying costs.
Ratio Decidendi
The court found that the current suit and the previously withdrawn suit involved the same parties and the same cause of action, namely entitlement to land parcel KERICHO/LITEIN/560 by way of adverse possession. The respondent withdrew the earlier suit and was ordered to pay costs, which remain unpaid. Order 25 Rule 4 of the Civil Procedure Rules expressly provides that a subsequent suit on the same cause of action may be stayed until costs of the discontinued suit are paid. The respondent's willingness to pay at his own convenience does not satisfy the rule. The court held that allowing the respondent to proceed without paying the costs would violate the clear statutory provision and...
Court Disposition
Application allowed. Suit stayed until payment of costs in HCCC No 36 of 2014. Costs of the application awarded to the applicant.
Orders
- The suit herein is stayed until the costs in HCCC No 36 of 2014 are paid.
- Costs of this application are awarded to the applicant.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KERICHO
E.L.C MISC. CIVIL SUIT NO 72 OF 2015
JOHN KIBET KIBOR..............................................PLAINTIFF/APPLICANT
VERSUS
DANIEL KIPLANGANT CHEPKWONY......DEFFENDANT/ RESPONDENT
RULING
By a Notice of Motion dated 1st April 2016 and brought under Order 25 Rule 4, the Defendant applicant seeks an order for stay of KERICHO HC MISC CIVIL SUIT No 72 of 2015 pending the payment of costs in HC CIVIL SUIT NO. 36 of 2013.
This is a fairly straight forward matter. The Respondent herein filed suit against the Applicant claiming that he is entitled to land parcel numberKERICHO/LITEIN/560 measuring two acres which is registered in the Applicant’s name, by way of adverse possession. Prior to the filing of this suit, the Respondent had filed a similar suit by way of a plaint vide KERICHO HCCC No 36 of 2014 which was subsequently withdrawn. Following the withdrawal of the said suit, the Respondent was ordered to pay costs assessed by the Defendant Applicant’s counsel at Kshs.104,995/=. The said costs have not yet been paid, yet the Respondent wishes to proceed with the current suit. It is against this background that the applicant has filed this application seeking an order for stay of the suit herein.
Counsel for the applicant chose not to file any submissions and sought to rely on the grounds set out in the Notice of Motion and the supporting affidavit. In his submissions, counsel for the Plaintiff/Respondent contends that the suit ought not to be stayed as there is no nexus between the current suit-HCC MISC CIVIL SUIT NO 72 of 2015 and HCCC no 36 of 2014 which was earlier withdrawn. However, the law does not bear him out.
The Civil Procedure Act is patently clear. Order 25 Rule 4provides as follows:
If any subsequent suit shall be brought before payment of the costs of a discontinued suit, upon the same, or substantially the same cause of action, the court may order a stay of such subsequent suit until such costs have been paid.
I have looked at pleadings inKERICHO HCCC No. 36 of 2014 JOHN KIBET KORIR Vs DANIEL KIPLANGAT CHEPKWONY in which the Respondent herein seeks to be declared as the owner of 2 acres comprised in land parcel numberKERICHO/LITEIN/560. This is similar to the claim inKERICHO HC MISC CIVIL SUIT NO 72 JOHN KIBET KORIR VS. DANIEL KIPLANGAT CHEPKWONY where the Respondent claims that he is entitled to 2 acres comprised in land parcel number KERICHO/LITEIN/560 registered in the applicant’s name by way of adverse possession.
It is not in dispute that the Respondent withdrew HCCC no 36 of 2014 and that costs were assessed at Kshs.104. 995. Indeed, the Respondent has sworn an affidavit indicating that he is willing to pay the said costs. He is only under the misconception that he can pay the said costs in his own good time as he pursues the current suit. This would be a violation of the clear provisions of Order 25 rule 4 of the Civil Procedure Rules. The Respondent has not come to court with clean hands and he cannot therefore benefit from his breach of the law. In the circumstances, I allow the application and direct that the suit herein be stayed until the costs in HCCC No 36 /2014are paid. I award the costs of this application to the applicant.
Dated, signed and delivered this 12th day of April 2017.
…......................
J. M. ONYANGO
JUDGE
In the presence of:
1. Obondo Koko for the Defendant/Applicant.
2. Miss Chelimo holding brief for Orina for the Plaintiff/Respondent.
3. Court assistant- Rotich