[2022] KEELC 51 (KLR)

Precious Gardens Residents Association v Precious Heights Ltd & 4 others (Environment & Land Petition 51 of 2015) [2022] KEELC 51 (KLR) (Environment and Land) (26 May 2022) (Judgment)

Neutral citation: [2022] KEELC 51 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Petition 51 of 2015

LNH Mbugua, J

May 26, 2022

IN THE MATTER OF AN APPLICATION UNDER ARTICLES 2,19,22(1),23,24,35,40,43 AND 46 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF THE ENFORCEMENT OF THE CONSTITUTIONAL RIGHT OF ACCESS TO INFORMATION AS ENSHRINED IN THE CONSTITUTION IN SO FAR AS THE SAID RIGHT UNDER ARTICLE 35 CONTINUES TO BE VIOLATED AND IN THE MATER OF THE ENFORCEMENT OF THE CONSTITUTIONAL RIGHT OF ACCESSIBLE AND ADEQUATE HOUSING AS ENSHRINED IN THE CONSTITUTION IN SO FAR AS THE SAID RIGHT UNDER ARTICLE 43(B) CONTINUES TO BE VIOLATED AND IN THE MATTER OF THE ENFORCEMENT OF THE CONSTITUTIONAL RIGHT OF CONSURMERS TO GOODS AND SERVICES OF REASONALBE QUALITY AND TO THE ELC. PETITION NO.51 OF 2015(JUDG.)Page 1 of 7 INFORMATION NECESSARY FOR THEM TO GAIN FULL BENEFITS FROM GOODS AND SERVICES IN SO FAR AS THE SAID RIGHT UNDER ARTICLE 46 CONTINUES TO BE VIOLATED AND RULE 4 OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULE OF 2012 AND ALL OTHER ENABLING POWERS AND PROVISIONS OF THE LAW AND IN THE MATTER OF SECTION 7 OF THE SECTIONAL PROPERTIES ACT NO. 21 OF 1987 IN THE MATTER OF APPLICATON

Between

Precious Gardens Residents Association

Petitioner

and

Precious Heights Ltd

1st Respondent

Property Point Ltd

2nd Respondent

Housing Finance Developlent and Investment Ltd

3rd Respondent

National Construction Authority

4th Respondent

Nairobi City County Government

5th Respondent

Judgment

1. This judgment only relates to the issue of costs. The Petitioners are a Residents Association and owners/occupier of housing units known as Precious Gardens. The 1st Respondent was the vendor of the housing units erected on Land Parcel No. Dagoretti/Riruta/6809 while 2nd and 3rd Respondents were the developers/financiers of the apartments. The 4th Respondent is the National Construction Authority while 5th Respondent is the County Government of Nairobi.

2. Vide a Petition dated October 4, 2019, the Petitioners sued the Respondents seeking orders inter alia to be supplied with financial statements, bank statements, board minutes, utility documents, building plans etc.

3. Notice of appointments for the Respondents (save 4th Respondent) were promptly filed but I have not seen any responses to the Petition.

4. On May 18, 2020Counsel for Plaintiff informed the court that there had been talks with a view to resolving the dispute. The court gave a mention date for July 27, 2020“to record a settlement”. Come the dateJuly 27, 2020 and only counsel for 1st – 3rd Defendants was present. The court gave orders that: “The Petition herein shall be heard on November 19, 2020”.

5. The case was however not heard on 19. 11. 2020 and another date was given as June 3, 2021. On 3rd June 2021, counsel for 1st-3rd Respondents addressed the court as follows: “The issue in this suit is largely resolved. The only outstanding issue relate to costs. We request for time to resolve the issue of costs”Counsel for Petitioner had then responded that; “That is the position”.The court gave another date of July 6, 2021to record a settlement.

6. On July 6, 2021directions were given for parties to canvas the issue of costs through affidavits and written submissions.

7. On January 19, 2022, Counsel for Petitioner addressed the court as follows: “Case is settled save on issue of costs” of which counsel for 1st Defendants responded; “That is the position.” The court proceeded to mark the suit as settled save on issue of costs.

8. I have considered the averments set forth by the parties. The Petitioners contend that when 1st – 3rd Respondents were served with the court papers and even before responding to the Petition, the said Respondents commenced the handover process of the full management of the estate to the owners (Petitioners). Thus the proceedings were terminated at an early.

9. In the supreme court of Baridi Felix Mbevo v Musee Mati & 2 others (2021)eKLR, the court reiterated its findings in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others (2014)eKLR on costs as follows:Kenya case of“It emerges that the award of costs would normally be guided by the principle that “Costs follow the event”. The effect being that the party who calls forth the event by instituting the suit will bear the costs if the suit fails: but if this party shows legitimate occasion, by succeful suit, then the Defendant or Respondent will bear costs.However the vital factor in setting the preference is the judiciously-exercised discretion of the court, accommodating the special circumstances of the case, while being guided by the end of justice……”

10. In the suit at hand, the parties did not give the court a sneak preview of the terms of their settlement. They simply stated that the dispute was resolved. I have also considered that the resolution of the dispute occured at the infancy stage of the suit, and no responses to the petition had even been filed.

11. In that regard and in order to meet the ends of justice, I exercise my discretion in directing that each party bears their own costs of the suit.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 26TH DAY OF MAY, 2022 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-M/S Kioko holding brief for Mr. Kibiku for PetitionersM/S Muthee for the 1st and 2nd RespondentsCourt Assistant: Eddel.