[2024] KEELC 13786 (KLR)

Khan & 2 others v Kanyi t/a Kenya Projects Executive & Budget Houses & 2 others (Land Case E009 of 2023) [2024] KEELC 13786 (KLR) (11 December 2024) (Ruling)

Neutral citation: [2024] KEELC 13786 (KLR)

Republic of Kenya

In the Environment and Land Court at Mombasa

Land Case E009 of 2023

LL Naikuni, J

December 11, 2024

Between

Imran Bismillah Khan

1st Plaintiff

Abel Murimi Kamau

2nd Plaintiff

Simon Mwaniki Mwathi

3rd Plaintiff

and

David Mureithi Kanyi t/a Kenya Projects Executive & Budget Houses

1st Defendant

Susan Waweru t/a Trevo Auctioneers

2nd Defendant

Middle Esat Bank Kenya Limited

3rd Defendant

Ruling

I. Introduction 1. This is a fairly straight forward issue being one on costs for the parties upon withdrawal of the suit that Honourable Court was tasked to make a determination. It emanates from the Notice of Motion application dated 25th September, 2024 filed by Susan Waweru t/a Trevo Auctioneers and Middle East Bank Limited, the 2nd and 3rd Defendants/Applicants. The application was brought under the provisions of Order 51 Rule 1, Order 25 Rules1, 2, 4 and 5 of the Civil Procedure Rules, 2010, Section 27 of the Civil Procedure Act, Cap. 21 and the Inherent Powers of the Court.

2. Upon service of the Application, the Plaintiffs/Respondents filed their response through a statement of grounds of opposition 6th October, 2024 accordingly.

II. The 2nd and 3rd Defendants’ case 3. The 2nd and 3rd Defendants/Applicants sought for the following orders:-a.The costs of the 2nd and 3rd Defendants be awarded and paid by the Plaintiffs in this suit which suit was withdrawn on 24th September 2024.

4. The application the grounds, testimonial facts and averment by the 5 Paragraphed supporting affidavit. The Depondent averred that:a.Withdrawal of the suit was contrary to the provision Order 25 of the Civil Procedure Rules, 2010 and specifically Order 25 Rule (2) of the Civil Procedure Rules, 2010. b.No consent of the parties to withdraw this suit was drawn, signed by the parties and/or was filed.c.Notice of Withdrawal of suit dated 27th July 2024 was contrary to Order 25 Rule 1 of the Civil Procedure Rules.d.Under the provision of Section 27 of the Civil Procedure Act Cap. 21 provides for costs of the suit to the parties affected on the withdrawal of a suit; ande.Section 27 (1) of the Civil Procedure Act provided that the Court must give reasons for denying a party of its cost on a suit that has been withdrawn.

III. The Response by the Plaintiffs 5. The Plaintiffs responded to the Notice of Motion application through a 5 paragraphed statement of grounds of opposition dated 6th October, 2024 on the grounds that:-a.The application dated 25th September 2024 is defective for non-compliance with the provisions of Order 51 rule 14 for want of a supporting affidavit forming the basis to be awarded costs.b.It was a general rule that costs belong to the client/s and a motion in the absence of a supporting affidavit deponed by the client should be deemed to constitute a forfeiture of the right to pursue costs.c.The application dated 25th September 2024 ought to be dismissed with costs for being filed outside the timelines issued by the court on 30th July, 2024. d.The application dated 25th September 2024 was defective since no leave was sought from court to enlarge time in accordance to the legal provisions of Order 50 rule 5 of the Civil Procedure Rules, 2010. e.The application dated 25th September 2024 misapprehends the legal provisions of Section 27 of the Civil Procedure Act since the said provisions have been adjudged to be discretionary and the court should be moved appropriately with evidence to demonstrate why a party wasentitled to costs and not shift the burden to court to give reasons to a successful litigant why he is not entitled to costs.f.For reasons whereof the Plaintiffs prayed that the application be struck out and/or dismissed with Costs to the Plaintiffs.

IV. Submissions 6. On 28th October, 2024 while all the parties were present in Court, they were directed to have the Notice of Motion application dated 25th September, 2024 be disposed of by way of written submissions, By the time of penning down the ruling, the Honorable Court had not as yet accessed the submission by any of the parties complied. The Honourable Court proceeded to reserve a ruling date on 5th December, 2024 on its own merit accordingly.

Analysis and Determination 7. I have carefully read and considered the pleadings herein and the relevant provisions of the Constitution of Kenya, 2010 and the Law made by the by the Learned Counsels. In order to arrive at an informed decision, the Honorable Court has two (2) framed the following issues for determination.a.Whether the Notice of Motion dated 25th September, 2024 is meritedb.Who will bear the Costs of Notice of Motion application 25th September, 2024.

Issue No. a). Whether the Notice of Motion dated 25th September, 2024 is merited. 8. Under this sub – title, the main issue here is whether the Applicants are entitled to be granted the costs of withdrawal. As a matter of brief background, the 1st, 2nd and 3rd Plaintiffs instituted this suit against the 1st and 2nd Defendants vided a Plaint dated 16th August, 2023. The Plaintiffs sought for Judgement to be entered severally and jointly against the Defendants for:-a.A declaration that the 1st Defendant was in breach of the various agreements for sale.b.An order of specific performance against the 1st Defendant to register and issue the Plaintiffs with 99 – years sub leases over the various sectional units.c.A permanent injunction against the 1st and 2nd Defendants either by themselves, agents, servants, principals and/or employees and/or any person acting under their instructions from selling by public auction or by any other manner whatsoever and/or otherwise interfering with the suit property.d.In default of (b) above, the Registrar of Lands Mombasa be ordered to register a Sublease in favour of the Plaintiffs against the Suit Property and dispense with original documents,e.Costs of this suit.

9. Upon service of the pleadings and the Summons to Enter appearance dated 17th August, 2023 being effected, the 1st and 2nd Defendants on 8th April, 2024 filed their Memorandum of Appearance and Statement of Defence. Subsequently, in the course of the proceedings, the Plaintiffs filed a Notice of Withdrawal of the suit in its entirety against the Defendants dated 27th July, 2024. Indeed, by consensus on 30th July, 2024 the Notice of Withdrawal of the suit was adopted by Court as its orders save for the issue of costs which the Defendants pressed that they were entitled to. The Honourable Court advised them to move it formally on the subject matter.

10. Indeed, the Defendants filed the instant Notice of Motion application dated 25th September, 2024 and which was responded to by the Plaintiffs. From the application, the Applicants contended that withdrawal of the suit is contrary to the provision of Order 25 of the Civil Procedure Rules and specifically Order 25 rule (2) of the Civil Procedure Rules. The averred that there was no consent of the parties to withdraw this suit was drawn, signed by the parties and/or was filed. Notice of Withdrawal of suit dated 27th July 2024 was contrary to Order 25 Rule 1 of the Civil Procedure Rules. Under Section 27 of the Civil Procedure Act provides for costs of the suit to the parties affected on the withdrawal of a suit and that Section 27 (1) of the Civil Procedure Act provided that the Court must give reasons for denying a party of its cost on a suit that has been withdrawn.

11. The Plaintiff on the other hand argued that the application dated 25th September 2024 is defective for non-compliance with the provisions of Order 51 rule 14 for want of a supporting affidavit forming the basis to be awarded costs. It is a general rule that costs belong to the client/s and a motion in the absence of a supporting affidavit deponed by the client should be deemed to constitute a forfeiture of the right to pursue costs.

12. The Plaintiff further contended that the application dated 25th September 2024 ought to be dismissed with costs for being filed outside the timelines issued by the court on 30th July, 2024. The application dated 25th September 2024 was defective since no leave was sought from court to enlarge time in accordance to the legal provisions of Order 50 rule 5 of the civil procedure rules. The said application misapprehended the legal provisions of Section 27 of the Civil Procedure Act since the said provisions have been adjudged to be discretionary and the court should be moved appropriately with evidence to demonstrate why a party was entitled to costs and not shift the burden to court to give reasons to a successful litigant why he is not entitled to costs.

13. Of course, the issue of “order as to costs” is for the determination of the Court, and as it looked out the defendant objected to the “no order as to costs” provision and claimed his costs of the withdrawn suit, which objection is the subject of this ruling. Costs of a suit or other proceedings are always in the discretion of the Court in terms of section 27 of the Civil Procedure Act, which provides as follows:“27. Costs1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.(2)The Court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.”

14. It is a settled principle of costs that costs follow the event, meaning that the successful party takes the costs unless the Court for sufficient reason orders otherwise. In considering this exercise of the discretion, the Court may properly take into account the length of time that the suit or proceedings has been going in Court before the withdrawal or other determination; the nature of the relief sought; the steps taken in the proceedings; the stage of hearing of the suit or proceedings; the need to promote access to justice by indigent suitors; and other sufficient reason in the interest of justice.

15. The provision of Order 25 of the Civil Procedure Rules, which provides:-1. At any time before the setting down of the suit for hearing the plaintiff may by notice in writing, which shall be served on all parties, wholly discontinue his suit against all or any of the Defendants or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action.2. (1)Where a suit has been set down for hearing it may be discontinued, or any part of the claim withdrawn, upon the filing of a written consent signed by all the parties.(2)Where a suit has been set down for hearing the court may grant the Plaintiff leave to discontinue his suit or to withdraw any part of his claim upon such terms as to costs, the filing of any other suit, and otherwise, as are just.”(3)The provisions of this rule and rule 1 shall apply to counter claims.

16. I rely on the case of: “Beijing Industrial Designing & Research Institute – Versus - Lagoon Development Ltd [2015] eKLR”, the Court of Appeal stated as follows: -“The above provision presents three clear scenarios regarding discontinuance of suits or withdrawal of claims. The first scenario arises where the suit has not been set down for hearing. In such an instance, the plaintiff is at liberty, at any time, to discontinue the suit or to withdraw the claim or any part thereof. All that is required of the plaintiff is to give notice in writing to that effect and serve it upon the all the parties. In that scenario, the plaintiff has an absolute right to withdraw his suit, which we agree cannot be curtailed. The second scenario arises where the suit has been set down for hearing. In such a case, the suit may be discontinued or the claim or any part thereof withdrawn by all the parties signing and filing a written consent. In this scenario, the right of the plaintiff is circumscribed by the requirement that he must obtain the written consent of all the other parties. The last scenario arises where the suit has been set down for hearing but all the parties have not reached any consent on discontinuance of the suit or withdrawal of the claim or any part thereof. In such eventuality, the plaintiff must obtain leave of the court to discontinue the suit or to withdraw the claim or any part thereof, which is granted upon such terms as are just. In this scenario too, the plaintiff’s right to discontinue his suit is circumscribed by the requirement that he must obtain the leave of the court. That such leave is granted on terms suggests that it is not a mere formality.”

17. I do not see, in terms of the wording of section 27 of the Civil Procedure Act, a “good reason” to order against the general principle that “costs shall follow the event.” Once withdraw the suit wholly, the suitor must as a general rule pay to the Defendant the costs of the suit. I do not see a good reason in this suit to depart from this general rule.

Issue No. b). Who will bear the Costs of Notice of motion application dated 25th September, 2024 18. It is now well established that the issue of Costs is at the discretion of the Court. Costs meant the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The Proviso of Section 27 (1) of the Civil Procedure Rules Cap. 21 Laws of Kenya holds that Costs follow the events. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of “Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR and “Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR, the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. In the present case, the Honourable Court elects to award the applicants the costs of the present application.

V. Conclusion & Disposition 19. In long analysis, the Honorable Court has carefully considered and weighed the conflicting parties’ interest as regards to balance of convenience. Clearly, the Plaintiffs/ Applicants have a case against the Defendants/ Respondents.

20. Having said that much, there will be need to preserve the suit land in the meantime. In a nutshell, I proceed to order the following:-a.THAT the Notice of Motion application dated 25th September, 2024 be and is hereby found to have merit and is hereby allowed entirely.b.THAT the Honorable court be and is hereby orders that the costs of the 2nd and 3rd Defendants be awarded and paid by the Plaintiffs in this suit which suit was withdrawn on 24th September 2024. c.THAT the Applicants herein also awarded the costs of the Notice of Motion application 25th September, 2024. d.THAT this orders applies to the ELC No. 008 of 2023 – “John Nderitu Waweru & Others – Versus – David Mureithi Kanyi & Another” – “Mutatis Mutandis”.It is so ordered accordinGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS 11TH DAY OF DECEMBER 2024. …………………………………..HON. MR. JUSTICE L. L. NAIKUNI,ENVIRONMENT AND LAND COURT AT MOMBASARuling delivered in the presence of:a). M/s. Firdaus Mbula, the Court Assistant.b). Mr. Koira Advocate for the Plaintiffs.c). Mr. Karanja Advocate for the 2nd and 3rd Defendants