[2017] KEHC 3497 (KLR)
The court found that the substantive dispute between the parties had been compromised out of court, with the plaintiff instructing the defendant to complete the transaction and the defendant complying. There was no evidence before the court of an agreement on costs, nor was it clear which party, if any, was...
Source-derived case information.
- Citation
- [2017] KEHC 3497 (KLR)
- Parties
- Plaintiff: Macharia Gakaria & Associates Advocates; Defendant: Letangule & Company Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 233 of 2016
- Procedural Posture
- Civil Suit / Ruling on Costs After Compromise
- Outcome
- Each party to bear its own costs.
- Judges
- F Tuiyott
- Legal Topics
- Costs of Suit, Compromise of Action, Advocate Client Relationship
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Macharia Gakaria & Associates Advocates
Plaintiff
Letangule & Company Advocates
Defendant
Procedural Posture
Civil Suit / Ruling on Costs After Compromise
Legal Issues
- 1 Whether costs should be awarded to either party following compromise of the suit.
- 2 Whether the compromise constituted a success for either party warranting costs.
Ratio Decidendi
The court found that the substantive dispute between the parties had been compromised out of court, with the plaintiff instructing the defendant to complete the transaction and the defendant complying. There was no evidence before the court of an agreement on costs, nor was it clear which party, if any, was successful in the litigation. The court held that, in such circumstances where the outcome does not clearly favour one party, it is appropriate for each party to bear its own costs. The principle that costs follow the event did not apply strictly here due to the compromise and lack of a clear victor.
Court Disposition
Each party to bear its own costs.
Orders
- Each party shall bear its own costs.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & ADMIRALTY DIVISON
CIVIL SUIT. NO.233 OF 2016
MACHARIA GAKARIA & ASSOCIATES ADV... PLAINTIFF
VERSUS
LETANGULE & COMPANY ADVOCATES.........DEFENDANT
RULING
1. The controversy that had been presented in these proceedings has all but been compromised. What remains is the question of costs of the suit.
2. And costs follow the event. To understand the event herein the background to this suit and compromise reached is necessary.
3. The firm of Macharia Gakaria & Associates Advocates (the Plaintiff) represented a Client by the name Guerassim Nikolov in the purchase of an apartment along Chaka Road being Flat B16 on LR No.1/360. Chase Bank Limited agreed to partly finance the purchase price and it appointed the firm of Letangula & Company Advocates (the Defendant) to represent it in the transaction.
4. There was an apparent delay in the completion of the transaction and on 20th June 2016 the Plaintiff brought a Notice of Motion seeking the following prayers:-
“2. A mandatory injunction directing and/or compelling the Defendant, its partners, servants and/or agents to :
a. Forthwith return to and/or refund to the Plaintiff Kshs.2,964,820/= less of any Stamp Duty paid to the Government of Kenya on transfer of Apartment B16 on L.R. No.1/360.
b. Forthwith return all documents forwarded by the Plaintiff or on its behalf to the Defendant in respect of Apartment B16 on L.R. No. 1/360 including but not limited to:
i. Original Lease in respect of Apartment B16 erected on L.R N.1/360.
ii. 3 duly executed Transfer of Lease Documents duly executed by the Vendor and Purchaser with coloured passport sized photographs affixed thereon.
iii. A copy of receipt for payment of Rates to the Nairobi City County Government.
iv. Duly executed Spousal Consent in duplicate.
v. A letter from the management company indicating settlement of all management costs.
vi. Utility bills for water and electricity.
vii. Copies of passports and PIN Certificates for both Vendor and Purchaser.
viii. Copy of Title Document in respect of L.R No.1. 360.
3. Cost of this application and of the suit”.
5. It is undisputed that during the pendency of the suit, the Plaintiff instructed the Defendant to complete the transaction and there is evidence that on 29th July 2016 the Defendant duly registered the transfer and forwarded all Documents to the Plaintiff.
6. By a letter dated 5th September 2016 the Plaintiff demanded a sum of Khs.500,000/= from the Defendant as costs. The Defendant refuses to accede.
7. Parties herein chose to settle the matter without involving Court. If there was an agreement on the issue of costs then the same is not presented to Court. When the Plaintiff approached Court it was seeking return of the completion Documents and in effect cancellation of the deal. Instead it chose to proceed with the completion of the transaction. The Plaintiff’s Client would have had good reason for choosing that line of action.
8. What is not clear is what motivated the compromise. Was it a concession by the Plaintiff that it could not succeed in the action as presented or was it reached to produce a win - win outcome to the parties? An award of costs generally flows with the outcome of the litigation. On this occasion it is not apparent who between the Parties was successful. In the circumstances there would be no reason for this Court to award either side with costs.
9. Each Party shall bear its own costs.
Dated, Signed and Delivered in Court at Nairobi this 13th day of July, 2017.
F. TUIYOTT
JUDGE
PRESENT;
Ndula for Defendant
N/A for Plaintiff
Carlos - Court Clerk