[2007] KEHC 2933 (KLR)
The court found that the ex parte Applicant, having initiated proceedings against the Interested Party and subsequently withdrawing the Notice of Motion without explanation, rendered the Interested Party the successful litigant. The Interested Party was not a party to the consent on withdrawal and costs, and no...
Source-derived case information.
- Citation
- [2007] KEHC 2933 (KLR)
- Parties
- Applicant: Republic; Respondent: Commissioner of Lands & 12 Others; Applicant: Milka Muthoni Ritho
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 149 of 2002
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Costs After Withdrawal of Main Motion
- Outcome
- Application for costs allowed. Judgment for costs with interest at court rates entered in favour of the Interested Party/Applicant.
- Legal Topics
- Costs Award, Withdrawal of Proceedings, Court Discretion on Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Commissioner of Lands & 12 Others
Respondent
Milka Muthoni Ritho
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Costs After Withdrawal of Main Motion
Legal Issues
- 1 Whether the Interested Party is entitled to costs after the ex parte Applicant withdrew the main Notice of Motion.
- 2 Whether the consent order on withdrawal, to which the Interested Party was not a party, bars the Interested Party from seeking costs.
Ratio Decidendi
The court found that the ex parte Applicant, having initiated proceedings against the Interested Party and subsequently withdrawing the Notice of Motion without explanation, rendered the Interested Party the successful litigant. The Interested Party was not a party to the consent on withdrawal and costs, and no opposition was filed to her application for costs. Exercising its discretion under Order 53 of the Civil Procedure Rules, the court held that the Interested Party was entitled to costs of the withdrawn Notice of Motion, with interest at court rates, as well as costs of the present application.
Court Disposition
Application for costs allowed. Judgment for costs with interest at court rates entered in favour of the Interested Party/Applicant.
Orders
- Judgment for costs with interest at court rates in favour of the Interested Party/Applicant as prayed in the Notice of Motion dated 1st February 2006.
- Costs of the Notice of Motion awarded to the Interested Party/Applicant.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Misc Appli 149 of 2002
REPUBLIC……………………………………....………….APPLICANT
Versus
COMMISSIONER OF LANDS & 12 OTHERS…….RESPONDENTS
EX-PARTE MILKA MUTHONI RITHO
RULING
By the Notice of Motion dated 1st February 2006, the Applicant, who was the Interested Party in the main Motion dated 22nd February 2002 seeks orders that the court be pleased to enter judgment for costs in favour of the Interested Party herein with interest at court rates, until payment in full. He also asks for costs of this Application.
The ex parte Applicant, on 3rd June 2005 filed a notice to withdraw her Notice of Motion Application in Misc. Application 149/02. It was by a consent letter signed by Mr Rabala, litigation Counsel, appearing for the Attorney General and the ex parte Applicant’s Counsel Mr. Kiiru. The Interested Party’s Advocate was not party to the consent which stated that there would be no orders as to costs. Consequently the Interested Party filed the present Application seeking costs of the whole Notice of Motion Application.
So far, there has been no reply or objection raised to the Application dated 1st February 2006. Though the ex parte Applicant attempted to interpret the consent order otherwise, and tried to change their minds as to withdrawing of the main Notice of Motion, nothing has been filed in opposition to the present Application. It stands unchallenged. There is no doubt that it is the ex parte Applicant who dragged the Interested Party to court. The ex parte Applicant then without any explanation or reason decided to withdraw the Notice of Motion.
Under Order 53, Civil Procedure Rules, it is in the discretion of the court to make orders as to costs. Ordinarily, costs will follow the event. In this case, the ex parte Applicant having changed her mind and withdrawn her case, the Interested Party is deemed to have been the successful litigant and should be awarded the costs of the Notice of Motion in this case. This court hereby enters judgment on costs with interest at court rates, for the Interested Party/Applicant as prayed in the Notice of Motion dated 1st February 2006 together with costs of the Notice of Motion.
Dated and delivered this 11th day of May 2007.
R.P.V. WENDOH
JUDGE
Read in presence of
Mr. Kiiru for ex parte Applicant
Daniel: Court Clerk