[2008] KEHC 378 (KLR)
The court found that both parties agreed the suit had been settled by lawful compromise, as evidenced by affidavits and submissions. There was no dispute as to the fact of settlement. The court exercised its discretion on costs, noting that both parties benefited from the settlement: the plaintiff regained...
Source-derived case information.
- Citation
- [2008] KEHC 378 (KLR)
- Parties
- Plaintiff: Moses Kariuki Njenga; Defendant: Kensington Developers Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 378 of 2006
- Procedural Posture
- Civil Case / Ruling on Notice of Motion to Mark Suit Settled
- Outcome
- Suit marked as wholly settled by agreement of the parties; each party to bear its own costs of the suit; costs of the application to be paid by the respondent to the applicant.
- Legal Topics
- Compromise of Suit, Withdrawal of Suit, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Kariuki Njenga
Plaintiff
Kensington Developers Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion to Mark Suit Settled
Legal Issues
- 1 Whether the suit has been wholly settled by agreement or compromise between the parties.
- 2 Whether the court should mark the suit as settled and enter judgment accordingly.
- 3 Who should bear the costs of the suit and the application.
Ratio Decidendi
The court found that both parties agreed the suit had been settled by lawful compromise, as evidenced by affidavits and submissions. There was no dispute as to the fact of settlement. The court exercised its discretion on costs, noting that both parties benefited from the settlement: the plaintiff regained possession of his property and the defendant was discharged from further liability. Accordingly, the court ordered that each party bear its own costs of the suit, except that the costs of the application would be paid by the respondent to the applicant.
Court Disposition
Suit marked as wholly settled by agreement of the parties; each party to bear its own costs of the suit; costs of the application to be paid by the respondent to the applicant.
Orders
- The suit is marked as wholly settled.
- Each party shall bear its own costs of the suit.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 378 of 2006
MOSES KARIUKI NJENGA…….………………………………….…… PLAINTIFF
VERSUS
KENSINGTON DEVELOPERS LTD……..…………...............……..DEFENDANT
RULING
Notice of Motion brought under Order XXIV Rule 6 (1). Where it is proved to the satisfaction of the court, and the court after hearing the parties directs that a suit has been adjusted wholly or in part by any lawful agreement or compromise or where the Defendant satisfies the plaintiff in respect of the whole or any part of subject matter of the suit the court shall on application of any party, order that such agreement compromise or satisfaction be recorded and enter judgment in accordance therewith.
The Applicant/Defendant seeks orders that his suit be marked settled or compromised by agreement of parties. Application is supported by affidavit of Applicant with annexures FH 1 dated 06. 06. 07 and 10. 06. 07.
The Plaintiff/Respondent has filed a Replying Affidavit in which he admits signing the annexure aforesaid and agreeing to withdraw the suit and asks for costs.
The Plaintiff has filed submissions where he says he does not object to suit being marked settled but the costs should be paid to him.
The Defendant’s submissions saying that this application was necessitated by the Plaintiffs neglected to file notice of withdrawal of suit in reasonable time after settlement was reached.
The Court has perused the application with Supporting Affidavit and also Respondents Replying Affidavit. Also the submissions filed by both parties. It is clear that the suit was settled and this matter is not disputed by parties. I therefore mark the suit as wholly settled.
On the issue of costs, both parties have benefited from the settlement. The Plaintiff has taken possession of his property and the Defendant has been discharged from any further liability on the constructions.
It is my view that each party should hear its own costs except that the costs of this application shall be paid by Respondent to the Applicant
It is so ordered.
DATED this 27th day of November, 2008.
JOYCE N. KHAMINWA
JUDGE