[2015] KEHC 8305 (KLR)
The court found that the Respondents had incurred costs in responding to the Plaintiff's application and suit. The Plaintiff's withdrawal of both the application and the main suit, especially in light of refiling the same suit under a different case number, justified an award of costs to the Respondents. The court...
Source-derived case information.
- Citation
- [2015] KEHC 8305 (KLR)
- Parties
- Plaintiff: Kundan Singh Construction International Limited; Defendant: Bank of Africa Kenya Ltd.; Interested Party: Kenya Commercial Bank
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 71 of 2015
- Procedural Posture
- Civil Case / Ruling on Withdrawal and Costs
- Outcome
- Application and main suit withdrawn with costs to the Defendant and Interested Party.
- Judges
- DO Ogembo
- Legal Topics
- Withdrawal of Suit, Costs Award, Duplicative Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kundan Singh Construction International Limited
Plaintiff
Bank of Africa Kenya Ltd.
Defendant
Kenya Commercial Bank
Interested Party
Procedural Posture
Civil Case / Ruling on Withdrawal and Costs
Legal Issues
- 1 Whether the Respondents are entitled to costs following the withdrawal of the application and the main suit by the Plaintiff.
- 2 Whether the Plaintiff acted in good faith in withdrawing the suit and refiling it under a different case number.
Ratio Decidendi
The court found that the Respondents had incurred costs in responding to the Plaintiff's application and suit. The Plaintiff's withdrawal of both the application and the main suit, especially in light of refiling the same suit under a different case number, justified an award of costs to the Respondents. The court exercised its discretion to allow the withdrawal but ordered that costs be paid to the Defendant and Interested Party.
Court Disposition
Application and main suit withdrawn with costs to the Defendant and Interested Party.
Orders
- The Plaintiff's application dated 21st May 2015 is withdrawn with costs to the Respondents.
- The main suit is withdrawn with costs to the Defendant and the Interested Party.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL AND ADMIRALTY DIVISION
CIVIL CASE NO. 71 OF 2015
KUNDAN SINGH CONSTRUCTION
INTERNATIONAL LIMITED ::::::::::::::::::::::::::::::::::::::: PLAINTIFF
-VERSUS-
BANK OF AFRICA KENYA LTD. ::::::::::::::::::::::::::::::::::DEFENDANT
-AND-
KENYA COMMERCIAL BANK :::::::::::::::::::::: INTERESTED PARTY
R U L IN G
The Application before this Court is the Notice of Motion dated 21st May 2015and filed by the Plaintiff but which has since been withdrawn. The issue now before the court is on costs. Mr. Odoyo for the Applicant urged the court not to allow costs for the application. However Messrs. Musyoka and Karungo for the Respondents insisted on costs, with Mr. Karungo submitting that the Plaintiff is not acting in good faith when he purports to withdraw the suit herein and the application, while at the same time filing the same suit afresh being HCCC No. 269 of 2015 of the same parties.
I have considered these submissions. In my view, the Respondents have suffered costs in responding to the application before the court. I allow the withdrawal of the said application with costs to the Respondents. Again, since the main suit herein has also been withdrawn, the costs of the same shall be for the Defendant and the Interested Party.
Orders accordingly.
READ, DELIVERED AND DATED AT NAIROBI
THIS 31ST DAY OF JULY 2015
E. K. O. OGOLA
JUDGE
PRESENT:
Mr. Odongo for the Plaintiffs
Mr. Musyoka holding brief for Karungo for the Defendant
Mr. Musyoka for the Interested Party
Teresia – Court Clerk