[2007] KEHC 1781 (KLR)
The court found that since the amended plaint was struck out and the suit against the applicants was terminated, and given that the applicants had incurred expenses in defending themselves, it was just and fair to award them costs. The absence of opposition from the plaintiff and the general principle that costs...
Source-derived case information.
- Citation
- [2007] KEHC 1781 (KLR)
- Parties
- Plaintiff: Kenya Industrial Estates; Defendant: Kianjata Furniture Industries Ltd; Defendant: Peterson Waiguru Kariuki; Defendant: George Muiga Kariuki; Defendant: Maingi Maina Kariuki; Defendant: Migwi Maina Kariuki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 3781 of 1993
- Procedural Posture
- Civil Case / Ruling on Application for Costs After Amended Plaint Struck Out
- Outcome
- application allowed; costs awarded to applicants
- Judges
- JL Osiemo
- Legal Topics
- Costs Award, Striking Out of Pleadings, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Industrial Estates
Plaintiff
Kianjata Furniture Industries Ltd
Defendant
Peterson Waiguru Kariuki
Defendant
George Muiga Kariuki
Defendant
Maingi Maina Kariuki
Defendant
Migwi Maina Kariuki
Defendant
Procedural Posture
Civil Case / Ruling on Application for Costs After Amended Plaint Struck Out
Legal Issues
- 1 Whether the applicants are entitled to costs after the suit against them was terminated by striking out the amended plaint.
- 2 Whether the court should exercise its discretion to award costs to the applicants.
Ratio Decidendi
The court found that since the amended plaint was struck out and the suit against the applicants was terminated, and given that the applicants had incurred expenses in defending themselves, it was just and fair to award them costs. The absence of opposition from the plaintiff and the general principle that costs follow the event supported the exercise of judicial discretion in favour of the applicants. The court therefore granted the applicants costs of the suit and the application, to be assessed by the taxing master.
Court Disposition
application allowed; costs awarded to applicants
Orders
- The application is allowed in terms of Prayer 1 and 2 of the Notice of Motion dated 17th January 2007.
- The applicants are granted the costs of the suit as well as the costs of this application.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Case 3781 of 1993
KENYA INDUSTRIAL ESTATES……………..………...………………..PLAINTIFF
VERSUS
KIANJATA FURNIURE INDUSTRIES LTD……...….….......……1ST DEFENDANT
PETERSON WAIGURU KARIUKI……………………....……… 2ND DEFENDANT
GEORGE MUIGA KARIUKI…………….…………………………3RD DEFENDANT
EPHANTUS MAINA KARIUKI…................................................... 4TH DEFENDANT
RULING
This is an application by Maingi Maina Kariuki and Muigi Maina Kariuki under Sections 3A and 27 of the Civil Procedure Act and Order L Rule 1 of the Civil Procedure Rules for an order that the Applicants be granted costs of the suit against the Plaintiff. The Applicants say that the suit against them was on 22nd April 2005 terminated after the Amended Plaint was struck out but they were not granted the costs of the suit. In support of the application Wachira their Advocate for the Applicants has sworn an affidavit giving grounds for the application.
The suit was filed by the Plaintiff on 2nd August 1993 and the Applicants were not named as the Defendants. On 23rd April 1996 the Plaintiff filed an Amended Plaint without leave of the court and in the Amended Plaint substituted two of the Defendants, one Peterson Waiguru Kariuki and George Muiga Kariuki with the Applicants Maingi Maina Kariuki and Migwi Maina Kariuki as the new Defendants. The applicants on 23rd November 1996 filed an application challenging the Amended Plaint through which they were introduced into this matter.
The said application was granted and the Amended Plaint ordered struck out on 22nd April 2005. As a consequence of the said striking out of the Amended Plaint the suits against the Applicants were terminated but costs were not granted as the same had not been prayed for. The Plaintiff was served but did not file any papers to oppose the application.
Mr. Nganga for the Applicants submitted that costs follow the suit and since the applicants were not granted costs after the suit against them was dismissed, it is only fair and just to grant the Applicant’s costs as they had engaged advocates to act for them and filed defences hence had incurred expenses.
Having considered the application in light of the supporting affidavit, the grounds and submission by counsel, I am satisfied that this is a suitable case in which to exercise my discretion in favour of the Applicants.
Accordingly I allow the application in terms of Prayer 1 and 2 of the Notice of Motion dated 17th January 2007. The Applicants are granted the costs of the suit as well as the costs of this application.
The costs of the suit so granted to be assessed by the taxing master.
Dated and delivered at Nairobi this 26th day of September 2007.
J.L.A. OSIEMO
JUDGE