[2013] KEHC 4032 (KLR)
The court held that the rules on costs in the event of a discontinuance of a suit or withdrawal of a claim are clear. Since the plaintiff discontinued the suit against the 2nd and 3rd defendants before the suit was set down for hearing, and the defendants made a timely written request for costs, they are entitled to...
Source-derived case information.
- Citation
- [2013] KEHC 4032 (KLR)
- Parties
- Plaintiff: Mohammed Shahid Moughal; Defendant: Micheal Mooke Kikaye; Defendant: Letia Taporu Sarimoi; Defendant: Parasho Ole Lemunyo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 999 of 2012
- Procedural Posture
- Environmental and Land Case / Ruling on Costs After Withdrawal of Suit Against 2nd and 3rd Defendants
- Outcome
- Costs awarded to the 2nd and 3rd defendants upon withdrawal of suit against them.
- Judges
- LN Gacheru
- Legal Topics
- Withdrawal of Suit, Costs Award, Discontinuance Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohammed Shahid Moughal
Plaintiff
Micheal Mooke Kikaye
Defendant
Letia Taporu Sarimoi
Defendant
Parasho Ole Lemunyo
Defendant
Procedural Posture
Environmental and Land Case / Ruling on Costs After Withdrawal of Suit Against 2nd and 3rd Defendants
Legal Issues
- 1 Whether the 2nd and 3rd defendants are entitled to costs following the plaintiff's withdrawal of the suit against them.
Ratio Decidendi
The court held that the rules on costs in the event of a discontinuance of a suit or withdrawal of a claim are clear. Since the plaintiff discontinued the suit against the 2nd and 3rd defendants before the suit was set down for hearing, and the defendants made a timely written request for costs, they are entitled to costs as of right under Order 25 Rule 3 of the Civil Procedure Rules. The court therefore directed that the file be placed before the Deputy Registrar for purposes of signing judgments for costs in respect of the discontinued suits.
Court Disposition
Costs awarded to the 2nd and 3rd defendants upon withdrawal of suit against them.
Orders
- The file to be placed before the Deputy Registrar for purposes of signing judgments for costs in respect of the discontinued suits.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Environmental & Land Case 999 of 2012 [if gte mso 9]><xml>
800x600
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MOHAMMED SHAHID MOUGHAL………………………………………….PLAINTIFF
VERSUS
MICHEAL MOOKE KIKAYE…………………………………........….1ST DEFENDANT
LETIA TAPORU SARIMOI……………………………….…....…….2ND DEFENDANT
PARASHO OLE LEMUNYO…………………………...…..………..3RD DEFENDANT
RULING.
The Plaintiff instituted a suit against the three Defendants by way of a Plaint dated 13/12/2012 accompanied by a Notice of Motion application of the same date. Subsequently on 5/2/2013 the Plaintiff filed a Notice of Withdrawal dated 31/1/2013 under Order 25 Rule 1 of the Civil Procedure Rules to discontinue the suit against the 2nd and 3rd Defendants. In the meantime, the 2nd and 3rd Defendants on 11/2/2013 filed a Notice to Enter Appearance dated 8/2/2013. The 2nd and 3rd Defendants also on 11/2/2013 filed a joint Defence to the Plaint. Vide a letter dated 7/2/2013, the 2nd and 3rd Defendants wrote to the Deputy Registrar requesting for an order for costs pursuant to Order 25 Rule 3. They requested in the alternative to have the matter mentioned before Court in order to make relevant applications.
The matter did indeed come before Court. After several attempts at negotiating on this aspect, counsels left it for the Court to rule on the subject. Thus the issue to be determined by before this Court is that of costs in view of the discontinuance of the suit in respect of the 2nd and 3rd Defendants. A Plaintiff, pursuant to Order 25 Rule 1 of the Civil Procedure Rules, before the suit is set down for hearing is at liberty to wholly discontinue a suit or withdraw a part of the claim against a Defendant(s).
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.
Sub-Rule 3 thereof gives the Defendant an opportunity to request for an order for costs in the event that the suit is discontinued or a part of the claim is withdrawn.
3. Upon request in writing by any defendant the registrar shall sign judgment for the costs of a suit which has been wholly discontinued, and any defendant may apply at the hearing for the costs of any part of the claim against him which has been withdrawn.
The rules on costs in the event of a discontinuance of a suit or withdrawal of a claim are clear. I find that the Defendant has rightfully requested for costs. In the circumstances, I direct that the file be placed before the Deputy Registrar for purposes of signing judgments for costs in respect of the discontinued suits.
Dated, Signed and Delivered this 22nd day of April2013
L.N. GACHERU
JUDGE
In the Presence of:-
………………………………………for the Plaintiff
………………………………………for the 1st Defendant
………………………………………for the 2ndand 3rd Defendants
Anne : Court Clerk