[2009] KEHC 1479 (KLR)
The court allowed the withdrawal of the chamber summons and struck out the re-amended and further re-amended plaints, recognizing the applicant's effort to streamline the proceedings. However, the court found that the defendants/respondents had incurred costs in preparing to defend the withdrawn and struck out...
Source-derived case information.
- Citation
- [2009] KEHC 1479 (KLR)
- Parties
- Plaintiff: Julius Mwivithi Nzuku; Defendant: Fernando Vischi & 21 Others
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 43 of 2008
- Procedural Posture
- Civil Suit / Ruling on Withdrawal of Applications and Striking Out of Pleadings
- Outcome
- Application for withdrawal and striking out allowed; costs awarded to defendants/respondents.
- Judges
- DO Ohungo
- Legal Topics
- Withdrawal of Pleadings, Costs Award, Striking Out of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Mwivithi Nzuku
Plaintiff
Fernando Vischi & 21 Others
Defendant
Procedural Posture
Civil Suit / Ruling on Withdrawal of Applications and Striking Out of Pleadings
Legal Issues
- 1 Whether the plaintiff/applicant should be allowed to withdraw the chamber summons and strike out the re-amended and further re-amended plaints.
- 2 Whether costs should be awarded to the defendants/respondents upon withdrawal and striking out of pleadings.
Ratio Decidendi
The court allowed the withdrawal of the chamber summons and struck out the re-amended and further re-amended plaints, recognizing the applicant's effort to streamline the proceedings. However, the court found that the defendants/respondents had incurred costs in preparing to defend the withdrawn and struck out pleadings. Applying Section 27 of the Civil Procedure Act, which provides that costs follow the event unless the court orders otherwise, and finding no sufficient reason to depart from this principle, the court awarded costs of the application and the struck out pleadings to the defendants/respondents.
Court Disposition
Application for withdrawal and striking out allowed; costs awarded to defendants/respondents.
Orders
- Chamber summons dated 18-8-08 withdrawn.
- Re-amended plaint dated 27-7-08 struck out.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
CIVIL SUIT 43 OF 2008
JULIUS MWIVITHI NZUKU..............................PLAINTIFFS
VERSUS
FERNANDO VISCHI & 21 OTHERS..........DEFENDANTS
RULING
Mr. Wasunna, counsel for plaintiff/applicant has indicated to this court their wish to withdraw chamber Summons dated 18-8-08 and striking out of the re-amended plaint dated 27-7-08 and the further re-amended plaint dated 29-7-08. Both Mr. Odera and Mr. Maosa have no objection to the prayers sought. Mr. Wasunna then requests that no orders on costs be made as by their move, they have taken the earliest opportunity to assent in the quagmire that has bedeviled this matter. Both Mr. Odera and Mr. Maosa disagree, submitting that they have had to make a lot of input in terms of getting up and preparing for the applications which were coming up. Further, that costs follow the event.
I will allow for the withdrawal of the chamber summons dated 18-8-08. I also strike out the re-amended plaint dated 27-7-08 and the further re-amended plaint dated 29-7-08.
I appreciate the approach taken by counsel for the applicants towards ensuring that this matter is not bogged down by too many “side issues” as it were.
However I cannot grieve the fact that respondents did instruct their counsel to defend the pleadings now withdraw/struck out and that they had to prepare for the same. I had earlier alluded to parties adhering to rules of procedure in the pleadings but plaintiffs did not take the cue. Section 27 of the Civil Procedure Act indicates that costs follow the event of any action unless the judge thinks otherwise.
There is nothing from the earlier events in this matter to move. We think that I should depart from the provisions and make no orders regarding costs.
I therefore award costs of this application dated 18-8-08 and the amended and re-amended plaints to the defendants/respondents.
Dated and delivered this 8thday of June 2009 at Malindi.
H. A. OMONDI
JUDGE
8-6-09