[2023] KEELC 20046 (KLR)
The court found that the plaintiff did not withdraw the suit promptly, as the notice to withdraw was filed eight months after the defendants had already filed an application to strike out the suit for duplicity. The court held that there was no justification for filing the present suit when a similar suit (ELC 314...
Source-derived case information.
- Citation
- [2023] KEELC 20046 (KLR)
- Parties
- Plaintiff: Pius Oyuyo Obiero; Defendant: Dianella Moretti; Defendant: Administration of the Estate of the Late Lydushka Hornik Piotto
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E015 of 2022
- Procedural Posture
- Environment and Land Case / Ruling on Costs After Withdrawal of Suit
- Outcome
- Costs awarded to the firm of Kaplan & Stratthon as against the plaintiff.
- Judges
- LN Mbugua
- Legal Topics
- Costs Award, Withdrawal of Suit, Duplicity of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pius Oyuyo Obiero
Plaintiff
Dianella Moretti
Defendant
Administration of the Estate of the Late Lydushka Hornik Piotto
Defendant
Procedural Posture
Environment and Land Case / Ruling on Costs After Withdrawal of Suit
Legal Issues
- 1 Whether the defendants are entitled to costs following the withdrawal of the suit by the plaintiff.
- 2 Whether the withdrawal of the suit was made promptly and in good faith.
- 3 Whether there was justification for filing the present suit when a similar suit existed.
Ratio Decidendi
The court found that the plaintiff did not withdraw the suit promptly, as the notice to withdraw was filed eight months after the defendants had already filed an application to strike out the suit for duplicity. The court held that there was no justification for filing the present suit when a similar suit (ELC 314 of 2016) was already pending. Consequently, the court exercised its discretion under Section 27 of the Civil Procedure Act to award costs to the defendants, specifically to the firm of Kaplan & Stratthon, as against the plaintiff. The court also noted that another advocate, Nelson Harun, only entered appearance after the notice of withdrawal had been filed, and thus was not...
Court Disposition
Costs awarded to the firm of Kaplan & Stratthon as against the plaintiff.
Orders
- Costs of the suit awarded to the firm of Kaplan & Stratthon as against the plaintiff.
Full Case Text
Judgment text and source record
24 paragraphs
Obiero v Moretti & another (Environment & Land Case E015 of 2022) [2023] KEELC 20046 (KLR) (21 September 2023) (Ruling)
Neutral citation: [2023] KEELC 20046 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case E015 of 2022
LN Mbugua, J
September 21, 2023
Between
Pius Oyuyo Obiero
Plaintiff
and
Dianella Moretti
1st Defendant
Administration of the Estate of the Late Lydushka Hornik Piotto
2nd Defendant
Ruling
1. This suit was withdrawn on July 10, 2023 of which the defendants pray for costs, hence this ruling.
2. I have perused the record. The plaintiffs in their submissions dated July 24, 2023 aver that they withdrew the suit at the earliest opportunity in good faith. That it is the defendants who in fact filed an application to have the suit struck out.
3. I find that the firm of Kaplan & Strathon had filed the application dated August 23, 2022 averring that the plaintiff had filed a similar suit ELC 314/2016. The Notice to withdraw suit was filed 8 months later on April 28, 2023.
4. The law governing issues of costs is set out at Section 27 of the Civil Procedure Act which provides that costs follow events. Also see Baridi Felisc Mbevous Musee Mati & 2 others [2021] eKLR.
5. The Notice to withdraw suit was not filed speedily and there was no justification in filing this suit when there existed another case ELC 314 of 2016.
6. However, I find that the firm of Nelson Harun apparently acting for one Roberto Sainagh only filed their memorandum of appearance on May 3, 2023 after the Notice of withdraw had been filed.
7. As such, I hereby proceed to award costs of the suit to the firm of Kaplan and Stratthon as against the plaintiff.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 21ST DAY OF SEPTEMBER, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGE