[2007] KEHC 2862 (KLR)
The court held that since the first defendant was successful in having the plaintiff's suit dismissed due to invalid summons, and there being no opposition or good reason to deny costs, the first defendant is entitled to the costs of the suit and the application. The court applied Section 27 of the Civil Procedure...
Source-derived case information.
- Citation
- [2007] KEHC 2862 (KLR)
- Parties
- Plaintiff: Joyce Mumbi Mugi; Defendant: Kenya Commercial Bank, Nyeri Branch; Defendant: Stephen Karuoya Mwangi; Defendant: Richard Njoroge Wachira t/a Green Bells Auctioneers; Defendant: Land Registrar Nyeri
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 77 of 2002
- Procedural Posture
- Civil Case / Ruling on Costs After Dismissal of Suit
- Outcome
- application for costs allowed
- Legal Topics
- Costs Award, Dismissal of Suit, Summons Validity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joyce Mumbi Mugi
Plaintiff
Kenya Commercial Bank, Nyeri Branch
Defendant
Stephen Karuoya Mwangi
Defendant
Richard Njoroge Wachira t/a Green Bells Auctioneers
Defendant
Land Registrar Nyeri
Defendant
Procedural Posture
Civil Case / Ruling on Costs After Dismissal of Suit
Legal Issues
- 1 Whether the first defendant is entitled to costs after the plaintiff's suit was dismissed for want of valid summons.
- 2 Whether the court should exercise discretion to deny costs to the successful party.
Ratio Decidendi
The court held that since the first defendant was successful in having the plaintiff's suit dismissed due to invalid summons, and there being no opposition or good reason to deny costs, the first defendant is entitled to the costs of the suit and the application. The court applied Section 27 of the Civil Procedure Act, which provides that costs should follow the event unless the court orders otherwise for good reason. The absence of opposition and the merits of the application led the court to grant the orders sought.
Court Disposition
application for costs allowed
Orders
- The plaintiff shall pay the first defendant's costs of the suit.
- The plaintiff shall pay the first defendant's costs of the Notice of Motion dated 24th May 2005.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Civil Case 77 of 2002
JOYCE MUMBI MUGI…………………………….....………………………PLAINTIFF
Versus
KENYA COMMERCIAL BANK, NYERI BRANCH..1ST DEFENDANT/APPLICANT
STEPHEN KARUOYA MWANGI………............……2ND DEFENDANT/APPLICANT
RICHARD NJOROGE WACHIRA
T/a GREEN BELLS AUCTIONEERS…..............……3RD DEFENDANT/APPLICANT
LAND REGISTRAR NYERI……………….........……4TH DEFENDANT/APPLICANT
RULING
The First Defendant successfully applied for the Plaintiff’s suit to be dismissed since the summons had become invalidated by passage of time. The court, by its ruling of 22nd March 2005, dismissed the Plaintiffs suit but failed to make an order on payment of costs. By a Notice of Motion dated 24th May 2005, the First Defendant has applied for the court to award it costs for the dismissed suit. The Plaintiff, although served, failed to attend the hearing and did not also oppose the application. By virtue of Section 27 of the Civil Procedure Act costs ought to follow the event unless the court or the judge, for good reason, otherwise orders. The defendant, having been successful in having the Plaintiff suit dismissed as aforestated, they are entitled to the costs of that suit.
I have considered their application and the affidavit in support and I find that the prayers therein are merited. I do therefore order that the Plaintiff will pay the First Defendant’s costs of the suit and the costs of the Notice of Motion dated 24th May 2005. Orders accordingly.
Dated and delivered at Nyeri this 11th day of May 2007
MARY KASANGO
JUDGE