[2025] KEELC 3583 (KLR)
The court found that it would be unjust and unfair to execute the decree for costs solely against the 1st Plaintiff when the judgment for costs was made jointly and severally against all five Plaintiffs. The Defendant's conduct in pursuing only the 1st Plaintiff, an elderly man whose only property and source of...
Source-derived case information.
- Citation
- [2025] KEELC 3583 (KLR)
- Parties
- Plaintiff: Roman Nyoike Mugacia; Plaintiff: Gathua Munyu; Plaintiff: Simon Kiingati; Plaintiff: Mary Njoki Njuguna; Plaintiff: Mary Mugure; Defendant: Makindi Banks Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Muranga
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 183 of 2017
- Procedural Posture
- Notice of Motion / Ruling on Post Judgment Application for Execution and Settlement of Costs
- Outcome
- application allowed in part
- Judges
- MN Gicheru
- Legal Topics
- Execution of Decree, Apportionment of Costs, Joint and Several Liability, Pro Rata Payment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Roman Nyoike Mugacia
Plaintiff
Gathua Munyu
Plaintiff
Simon Kiingati
Plaintiff
Mary Njoki Njuguna
Plaintiff
Mary Mugure
Plaintiff
Makindi Banks Limited
Defendant
Procedural Posture
Notice of Motion / Ruling on Post Judgment Application for Execution and Settlement of Costs
Legal Issues
- 1 Whether it is just to execute the decree for costs solely against the 1st Plaintiff when the costs were awarded jointly and severally against all Plaintiffs.
- 2 Whether the decretal sum should be apportioned among all Plaintiffs on a pro rata basis.
- 3 Whether the Plaintiffs should be granted reasonable time to settle the awarded costs.
Ratio Decidendi
The court found that it would be unjust and unfair to execute the decree for costs solely against the 1st Plaintiff when the judgment for costs was made jointly and severally against all five Plaintiffs. The Defendant's conduct in pursuing only the 1st Plaintiff, an elderly man whose only property and source of income was at risk, was inequitable. The court exercised its discretion to order that the decretal sum be apportioned equally among all Plaintiffs, requiring each to pay Kshs. 75,758, and further granted a period of nine months for the Plaintiffs to settle the costs. The court allowed the application in terms of the prayers seeking apportionment and reasonable time for payment,...
Court Disposition
application allowed in part
Orders
- Each Plaintiff shall pay Kshs. 75,758 towards the decretal sum on a pro rata basis.
- The decretal sum shall be paid within a period of 9 months from the date of this ruling.
Full Case Text
Judgment text and source record
28 paragraphs
Mugacia & 4 others v Makindi Banks Limited (Environment & Land Case 183 of 2017) [2025] KEELC 3583 (KLR) (6 May 2025) (Ruling)
Neutral citation: [2025] KEELC 3583 (KLR)
Republic of Kenya
In the Environment and Land Court at Muranga
Environment & Land Case 183 of 2017
MN Gicheru, J
May 6, 2025
Between
Roman Nyoike Mugacia
1st Plaintiff
Gathua Munyu
2nd Plaintiff
Simon Kiingati
3rd Plaintiff
Mary Njoki Njuguna
4th Plaintiff
Mary Mugure
5th Plaintiff
and
Makindi Banks Limited
Defendant
Ruling
1. This ruling is on the notice of motion dated 18-11-2024. The motion which is by the 1st Plaintiff is brought under Orders 40 rule 1 (a) and 51 rule 1 of the Civil Procedure Rules, Sections 1A, 1B, 3A, 27 and 63(1) of the Civil Procedure Act and all other enabling provisions of law.
2. The motion seeks the following residual orders.3. Costs awarded to the Defendant to be shared by all the five(5) Plaintiffs and not the 1st Plaintiff alone.4. The Plaintiffs who are men and women of straw be accorded reasonable and affordable time to settle the costs awarded to the Defendant against them.5. Costs of this application be provided for.
3. The motion is based on eleven(11) grounds and is supported by an affidavit sworn by 1st Plaintiff which has three annexures. The gist of the entire motion is as follows. One, the Defendant was awarded costs of Kshs. 378,790 against all the Plaintiffs. Two, the Defendant has declared openly that he wishes to recover all the costs from the 1st Plaintiff in order to teach him a lesson for having been the ring leader of the other Plaintiffs in this case. Three, true to his word, the Defendant has only been pursuing the 1st Plaintiff and excusing the other Plaintiffs. The only property that has been proclaimed belongs to the 1st Plaintiff. Four, the proclaimed property includes two cows which are the only source of income for the Plaintiff as he is at 83 year old man. Finally it is unjust to attach property belonging to one Plaintiff when the costs were awarded all the five Plaintiffs jointly and severally.
4. The motion though served upon counsel for the Defendant is not opposed. No replying affidavit or grounds of opposition were ever filed by the Defendant.
5. I have considered the motion in its entirety including the grounds, affidavit in support and annexures. I find that the motion has merit. It is not fair or just to execute against one Plaintiff when the decree is against all of them. I direct that the decretal amount be paid on a pro rata basis so that each Plaintiff pays Kshs. 75,758/= (Seventy five thousand, seven hundred and fifty eight.) Secondly, I direct that the decretal sum be paid within a period of 9 months.The motion is therefore allowed in terms of prayers 3 and 4. Costs in the cause.It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 6TH DAY OF MAY, 2025. M.N. GICHERUJUDGE.Delivered online in the presence of; -Court Assistant – Mwangi NjonjoPlaintiff’s counsel – Mr Kimani holding briefDefendant’s counsel – Absent