[2022] KEELC 2613 (KLR)
The court found that although the general rule is that costs follow the event, there were good reasons to depart from this principle in the present case. The plaintiffs had acted in person and withdrew the suit soon after the 3rd defendant was joined, with no summons served upon the 3rd defendant/interested party....
Source-derived case information.
- Citation
- [2022] KEELC 2613 (KLR)
- Parties
- Plaintiff: Francis Kimathi; Plaintiff: Jacob Nturibi; Plaintiff: Peter Nturibi; Defendant: Attorney General; Defendant: Land Registrar Meru Central; Defendant: Rael Nyawira Nyamu; Defendant: Latif M’Ikiara
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E006 of 2021
- Procedural Posture
- Environment and Land Case / Ruling on Withdrawal and Costs
- Outcome
- Suit withdrawn; each party to bear their own costs.
- Judges
- CK Nzili
- Legal Topics
- Withdrawal of Suit, Costs Follow Event, Joinder of Parties, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Kimathi
Plaintiff
Jacob Nturibi
Plaintiff
Peter Nturibi
Plaintiff
Attorney General
Defendant
Land Registrar Meru Central
Defendant
Rael Nyawira Nyamu
Defendant
Latif M’Ikiara
Defendant
Procedural Posture
Environment and Land Case / Ruling on Withdrawal and Costs
Legal Issues
- 1 Whether the plaintiffs should be allowed to withdraw the suit without conditions on costs.
- 2 Whether the general rule that costs follow the event should apply in the circumstances of this withdrawal.
Ratio Decidendi
The court found that although the general rule is that costs follow the event, there were good reasons to depart from this principle in the present case. The plaintiffs had acted in person and withdrew the suit soon after the 3rd defendant was joined, with no summons served upon the 3rd defendant/interested party. No party could be said to have been successful as the suit was withdrawn before substantive determination. In these circumstances, the court held that each party should bear their own costs, as none had prevailed and the withdrawal was not opposed on substantive grounds.
Court Disposition
Suit withdrawn; each party to bear their own costs.
Orders
- The suit is withdrawn with effect from March 28, 2022.
- Each party shall bear their own costs.
Full Case Text
Judgment text and source record
38 paragraphs
Kimathi & 2 others v General & 3 others (Environment & Land Case E006 of 2021) [2022] KEELC 2613 (KLR) (20 July 2022) (Ruling)
Neutral citation: [2022] KEELC 2613 (KLR)
Republic of Kenya
In the Environment and Land Court at Meru
Environment & Land Case E006 of 2021
C K Nzili, J
July 20, 2022
Between
Francis Kimathi
1st Plaintiff
Jacob Nturibi
2nd Plaintiff
Peter Nturibi
3rd Plaintiff
and
Attorney General
1st Defendant
Land Registrar Meru Central
2nd Defendant
Rael Nyawira Nyamu
3rd Defendant
Latif M’Ikiara
4th Defendant
Ruling
1. By a notice of motion dated March 25, 2022 the plaintiffs sought to withdraw the suit with effect from March 28, 2022. When the matter came up on May 16, 2022, counsel for the 3rd defendant told the court that his client had no objection to the withdrawal of the suit subject to the payment of costs.
2. Miss Gikundi counsel urged the court to find that the plaintiffs were initially acting in person and should not be made to suffer due to ignorance of the law. The court proceeded to allow the withdrawal and deferred a ruling on costs.
3. The general principle under Section 27 of the Civil Procedure Act is that costs follow the event.
4. In this matter the 3rd defendant submits they have incurred costs by filing the defence. By an application dated September 26, 2021, the 3rd defendant sought to be joined as an interested party in this suit. The court proceeded to allow the application vide a ruling dated January 26, 2022 following which the plaint was amended. The interested party to file a response within 21 days. The amended plaint was filed on February 16, 2022 and summons issued on March 4, 2022.
5. Prior to these amendments the 3rd defendant had with leave of court filed a defence dated December 20, 2021, whereas the 1st and 2nd defendant had only filed a preliminary objection which the court determined.
6. In Republic vs Rosemary Wairimu Munene (exparte applicant) Ihururu Dairy Farmers Cooperative Society Ltd (2014) eKLR, the court held that the principle that costs follow the event is not to be used to penalize the losing party but rather to compensate a successful party for the trouble taken in prosecuting or defending the suit.
7. In Jasbir Singh Rai & 3 others vs Tarlochan Rai & 4 others (2014) eKLR, the Supreme Court of Kenya held good reasons for departing from the general rule would include public interest and the circumstances of the case.
8. In Cecilia Karuru Nganga vs Barclays Bank & another (2016) eKLR, the court set out the good reasons to include the conduct of the parties, the subject of litigation, events leading to the termination, manner of termination, relationship between the parties and the need to promote reconciliation.
9. Applying the above principles, the reason(s) given for the withdrawal of the suit is because the parties were acting in person and filed the suit out of ignorance of the law.
10. As indicated above it is the 3rd defendant and or the interested party who sought to be enjoined as a party to this suit.
11. Soon thereafter joining the suit, the plaintiffs sought to withdraw the suit which the 3rd defendant/interested party has not objected to.
12. Similarly, no summons to enter appearance have been served upon the 3rd defendant/interested party by the plaintiffs.
13. Given the circumstances of this matter, I find that there are good reasons to depart from the general rule since none of the parties in this suit has been successful for the suit has only been withdrawn. Consequently, each party shall bear their own costs.Orders accordingly.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT THIS 20TH DAY OF JULY, 2022In presence of:Gikundi for plaintiffKieti for 1st and 2nd respondentNdubi for 3rd interested partyHON. C.K. NZILIELC JUDGE