[2009] KEHC 940 (KLR)
The court held that the general rule is that costs follow the event, and there was no sufficient reason to depart from this principle. The plaintiff, having instituted the suit against the wrong party and subsequently withdrawing it after realizing there was no cause of action, must compensate the defendant for the...
Source-derived case information.
- Citation
- [2009] KEHC 940 (KLR)
- Parties
- Plaintiff: Ngui Mulangu; Defendant: Ndeto Mutavi
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 81 of 2006
- Procedural Posture
- Civil Case / Ruling on Withdrawal and Costs
- Outcome
- Costs awarded to the defendant upon withdrawal of suit by plaintiff.
- Judges
- I Lenaola
- Legal Topics
- Withdrawal of Suit, Costs Follow Event, Boundary Disputes, Cause of Action
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ngui Mulangu
Plaintiff
Ndeto Mutavi
Defendant
Procedural Posture
Civil Case / Ruling on Withdrawal and Costs
Legal Issues
- 1 Whether the defendant is entitled to costs upon withdrawal of the suit by the plaintiff.
- 2 Whether there is sufficient cause to depart from the general rule that costs follow the event.
Ratio Decidendi
The court held that the general rule is that costs follow the event, and there was no sufficient reason to depart from this principle. The plaintiff, having instituted the suit against the wrong party and subsequently withdrawing it after realizing there was no cause of action, must compensate the defendant for the burden and expense incurred. The defendant, who was found to be innocent, is entitled to recover costs from the plaintiff. The court exercised its discretion under Section 27 of the Civil Procedure Code but found no justification to deny the defendant costs, as the suit was withdrawn solely due to the plaintiff's error.
Court Disposition
Costs awarded to the defendant upon withdrawal of suit by plaintiff.
Orders
- The costs of this suit shall be paid to the defendant by the plaintiff.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS Civil Case 81 of 2006
NGUI MULANGU ………..…………………………………………....PLAINTIFF
VERSUS
NDETO MUTAVI……………………………………………..............DEFENDANT
RULING
1. On 22. 4.2009, the Plaintiff decided to withdraw the present suit after seeing a copy of the District Land Registrar’s report filed on 28. 11. 2008.
2. The Defendant sought costs and his argument is that costs follow the event and there must be a sufficient cause why they should not be paid to a party who has entered appearance and filed a Statement of Defence in which he does not admit the claim.
3. The Plaintiff’s argument is that the Registrar found that in fact the disputed portion of land belongs to one Mutavi Ndunda and not any of the parties and since none has succeeded, then each should bear its own costs. Section 27 of the Civil Procedure Code provides as follows;
“(1) Subject to such conditions and limitations as may be prescribed, and the to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercises of those powers;
Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise orders;
(2) the court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interests shall be added to the costs and shall be recovered as such.”
4. The phrase “costs follow the event” was also used by Simpson J in Republic vs NairobiBusiness Premises Rent Tribunal & 2 others ex-parte Karasha [1976] – 1980] KLR 1263 and he declined to depart from the general rule. In this case, there is no reason why I should do so. The Plaintiff instituted the suit and sought several orders against the defendant who filed a Defence and inter alia stated that the dispute should have been dealt with as a boundary issue and that the relevant law should have been followed. Further, that the suit was premature.
5. Once the Plaintiff realized that he had sued the wrong party and that he had no cause of action, he withdrew the suit and I am clear in my mind that a Defendant, innocent as she turns out to be, must be compensated for her burden caused solely by the Plaintiff. It is important to add that she hired an advocate and incurred costs. I see no reason to deny her the right to recover those costs.
6. The costs of this suit shall therefore be paid to the Defendant by the Plaintiff.
7. Orders accordingly.
Dated and delivered at Machakos this 9th day of October 2009.
Isaac Lenaola
Judge
In the presence of; Mutia h/b for Mr. Muithya for Applicant
Mr.Makau for Respondent
Isaac Lenaola
Judge