[2013] KEHC 6213 (KLR)
The court held that, since the substantive dispute had been settled between the parties without disclosure of the terms of settlement, it was impossible for the court to determine the merits of the parties' respective cases or to identify the 'event' contemplated by section 27(1) of the Civil Procedure Act. In the...
Source-derived case information.
- Citation
- [2013] KEHC 6213 (KLR)
- Parties
- Plaintiff: The Roots Ltd.; Defendant: Kenya Power & Lighting Co. Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 311 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Costs After Settlement
- Outcome
- Each party to bear its own costs.
- Judges
- DW Mbuteti
- Legal Topics
- Costs Award, Consent Orders, Discretion of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Roots Ltd.
Plaintiff
Kenya Power & Lighting Co. Ltd.
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Costs After Settlement
Legal Issues
- 1 Whether the court can determine costs where the substantive dispute has been settled without disclosure of settlement terms.
- 2 How the court should exercise its discretion under section 27(1) of the Civil Procedure Act in the absence of information on the merits.
Ratio Decidendi
The court held that, since the substantive dispute had been settled between the parties without disclosure of the terms of settlement, it was impossible for the court to determine the merits of the parties' respective cases or to identify the 'event' contemplated by section 27(1) of the Civil Procedure Act. In the absence of such information, the court could not exercise its discretion to award costs to either party based on the merits. Therefore, the only reasonable and fair order was that each party should bear its own costs of the proceedings.
Court Disposition
Each party to bear its own costs.
Orders
- Each party shall bear its own costs of the proceedings.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
MISC APPLICATION NO. 311 OF 2011
THE ROOTS LTD..…………………………………………….…...PLAINTIFF
VERSUS
KENYA POWER & LIGHTING CO. LTD....……................….…DEFENDANT
R U L I N G
1. On 22nd January 2013 the court was informed by the learned advocates for the parties that the substantive issue in this matter (contempt of court) was settled by the parties and that the only issue outstanding was costs of the proceedings. The terms of settlement were not disclosed to the court. On 15th February 2013 an order was entered in terms of a consent letter dated 4th and filed on 11th February 2013. That consent was -
“1. That this matter be and is hereby marked as settled between the parties.
2. That the issue of who bears the costs be determined by the Court.”
2. Without disclosure to court of the terms of settlement, and short of deciding the merits of the parties’ relative cases in the substantive dispute, how else could the court make an informed decision on exercise of its discretion under section 27(1)of the Civil Procedure Act, Cap 21? What would be the event envisaged in the proviso to that subsection?
3. The court cannot do the impossible. The only sensible order to make in the circumstances is that each party bears its own costs of the proceedings. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 2ND DAY OF JULY 2013
H. P. G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 5TH DAY OF JULY 2013