[2023] KEELC 20647 (KLR)
The court found that the lower court had already determined the issue of costs, awarding costs to the first Third Party (now the 2nd respondent) and not to the second third party (now the 3rd respondent). The appellate court saw no reason to depart from this approach. Therefore, only the 2nd respondent was entitled...
Source-derived case information.
- Citation
- [2023] KEELC 20647 (KLR)
- Parties
- Appellant: Kabeho Housing Co Ltd; Respondent: George Gitau Mbugua; Respondent: SLMH Muhia t/a Slmh Muhia & Co Advocate; Respondent: David Njau Wakio t/a Milano Commercial Agencies
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 6 of 2018
- Procedural Posture
- Environment and Land Appeal / Ruling on Costs After Withdrawal of Appeal as Against 2nd and 3rd Respondents
- Outcome
- Costs of the withdrawn appeal awarded to the 2nd respondent only; 3rd respondent to bear own costs.
- Judges
- FM Njoroge
- Legal Topics
- Costs Award on Withdrawal, Counterclaim Procedure, Third Party Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kabeho Housing Co Ltd
Appellant
George Gitau Mbugua
Respondent
SLMH Muhia t/a Slmh Muhia & Co Advocate
Respondent
David Njau Wakio t/a Milano Commercial Agencies
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Costs After Withdrawal of Appeal as Against 2nd and 3rd Respondents
Legal Issues
- 1 Who should bear the costs of the withdrawn appeal as between the appellant and the 2nd and 3rd respondents.
- 2 Whether the lower court's decision on costs should guide the appellate court in awarding costs after withdrawal.
Ratio Decidendi
The court found that the lower court had already determined the issue of costs, awarding costs to the first Third Party (now the 2nd respondent) and not to the second third party (now the 3rd respondent). The appellate court saw no reason to depart from this approach. Therefore, only the 2nd respondent was entitled to costs of the withdrawn appeal, while the 3rd respondent would bear its own costs. The court emphasized that the structure of the pleadings and the outcome in the lower court should guide the allocation of costs in the appellate proceedings, especially where the appeal is withdrawn as against certain parties.
Court Disposition
Costs of the withdrawn appeal awarded to the 2nd respondent only; 3rd respondent to bear own costs.
Orders
- The 2nd respondent is awarded the costs of the withdrawn appeal.
- The 3rd respondent will bear its own costs of the withdrawn appeal.
Full Case Text
Judgment text and source record
25 paragraphs
Kabeho Housing Co Ltd v Mbugua & 2 others (Environment and Land Appeal 6 of 2018) [2023] KEELC 20647 (KLR) (12 October 2023) (Ruling)
Neutral citation: [2023] KEELC 20647 (KLR)
Republic of Kenya
In the Environment and Land Court at Nakuru
Environment and Land Appeal 6 of 2018
FM Njoroge, J
October 12, 2023
Between
Kabeho Housing Co Ltd
Appellant
and
George Gitau Mbugua
1st Respondent
SLMH Muhia t/a Slmh Muhia & Co Advocate
2nd Respondent
David Njau Wakio t/a Milano Commercial Agencies
3rd Respondent
Ruling
1. This is a ruling on costs of a withdrawn appeal. On June 20, 2023 Mr Karanja for the appellant withdrew the appeal as against the 2nd and 3rd respondents. Reason given was that the 1st defendant in the lower court case had a counterclaim and a third party notice for indemnity.
2. The appellant was the 1st defendant in the lower court case. The appellant had a further amended defence and counterclaim to which he put no heading identifying the parties to the counterclaim and this kind of pleading becomes perplexing when such an issue of costs, as being dealt with here, occurs for it requires one to traverse further into the pleadings to establish the claim against each party and construe it properly.
3. The judgment by the lower court was that he had not proved his counterclaim. The counterclaim was dismissed with costs to the plaintiff and the first Third Party.
4. The first Third Party emerged victorious in the matter in the court below and was joined in this appeal as the 2nd respondent. No costs were awarded to the 2nd third party who was joined in the present appeal as the 3rd respondent.
5. Being guided by the lower court’s decision on costs, I hereby award only the 2nd respondent the costs of the withdrawn appeal. The 3rd respondent will bear its own costs of the withdrawn appeal.
6. As this matter had been reserved for a ruling on the issue of costs only this file record is now to be returned to its original station, Nakuru for mention inter partes by the court and for further directions by the court there as to the disposal of the appeal.
DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 12TH DAY OF OCTOBER, 2023. MWANGI NJOROGEJUDGE, ELC, MALINDI