[2013] KEHC 694 (KLR)
The court held that since the consent order settling the suit was only between the plaintiff and the first defendant, the suit against the second defendant remained unresolved. As such, the second defendant's application for costs was premature because costs can only be awarded upon the conclusion of the suit and...
Source-derived case information.
- Citation
- [2013] KEHC 694 (KLR)
- Parties
- Plaintiff: Polycap Okumu Ochola; Plaintiff: Guardforce Security Limited; Defendant: Dubai Kenya Limited; Defendant: Zachariah Baraza t/a Siuma Auctioneers
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 46 of 2013
- Procedural Posture
- Civil Suit / Ruling on Costs Application by 2nd Defendant
- Outcome
- Application for costs by the second defendant dismissed as premature.
- Judges
- MM Kasango
- Legal Topics
- Costs Award, Consent Judgment, Injunctions, Loan Security
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Polycap Okumu Ochola
Plaintiff
Guardforce Security Limited
Plaintiff
Dubai Kenya Limited
Defendant
Zachariah Baraza t/a Siuma Auctioneers
Defendant
Procedural Posture
Civil Suit / Ruling on Costs Application by 2nd Defendant
Legal Issues
- 1 Whether the second defendant is entitled to costs at this stage of the proceedings.
- 2 Whether the consent order between the plaintiff and first defendant affects the second defendant's position.
Ratio Decidendi
The court held that since the consent order settling the suit was only between the plaintiff and the first defendant, the suit against the second defendant remained unresolved. As such, the second defendant's application for costs was premature because costs can only be awarded upon the conclusion of the suit and only if the court finds in favour of the second defendant. The court declined to award costs to the second defendant at this stage and directed that the second defendant should first seek to conclude the case between it and the plaintiff.
Court Disposition
Application for costs by the second defendant dismissed as premature.
Orders
- The second defendant's application for costs is declined.
- The second defendant should first seek to conclude the case between it and the plaintiff.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 46 OF 2013
POLYCAP OKUMU OCHOLA…………..……………………. 1ST PLAINTIFF
GUARDFORCE SECURITY LIMITED ……….……………….. 2ND PLAINTIFF
V E R S U S
DUBAI KENYA LIMITED …………………………………. 1ST DEFENDANT
ZACHARIAH BARAZA T/A
SIUMA AUCTIONEERS …………………..……………… 2ND DEFENDANT
RULING
The Plaintiff filed this suit against both the Defendants on 29th April 2013.
From the pleadings it is clear that the first Defendant advanced a loan to the Plaintiff which was secured by the Plaintiff's property No. MN/1/1861 Nyali Mombasa. The Plaintiff pleaded that on 19th March 2013 the first Defendant through its agent 2nd Defendant issued a notice to sell that security by public auction. It was the Plaintiff's prayer in the plaint for permanent injunction to be issued restraining the Defendants from advertising, selling or transferring that property.
By a consent order of 23rd July 2013 between the Plaintiff and the 1st Defendant the Plaintiff undertook to pay the amount of Kshs. 15 million to the first Defendant by instalments. It was also agreed that on final payment of that amount the suit between the Plaintiff and the first Defendant would be marked as settled. In that consent the Plaintiff agreed to pay the first Defendant costs of the suit.
That consent did not include the 2nd Defendant. The suit therefore between the Plaintiff and the second Defendant continues to subsist. It is for that reason that I find the second Defendant's prayer for costs of the suit to be awarded to him to be premature. Costs of the second Defendant can only be ascertained at the conclusion of the suit filed against it and only if such costs are awarded to the second Defendant.
The Court therefore declines to award the second Defendant's costs as sought. The second Defendant should first seek to conclude the case between it and the Plaintiff. It is so ordered.
Dated and delivered at Mombasa this 19th day of December, 2013.
MARY KASANGO
JUDGE