[2010] KEHC 2668 (KLR)
The court held that while a plaintiff cannot be compelled to proceed with a suit if he wishes to withdraw it, the general rule is that costs follow the event. There were no special circumstances to justify depriving the defendant of costs. Therefore, the plaintiff was granted leave to withdraw the suit, but the...
Source-derived case information.
- Citation
- [2010] KEHC 2668 (KLR)
- Parties
- Plaintiff: Sospeter Moindi; Defendant: Siro Mogaka
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 130 of 2005
- Procedural Posture
- Civil Suit / Ruling on Application for Leave to Withdraw Suit
- Outcome
- Plaintiff granted leave to withdraw suit with costs to the defendant.
- Legal Topics
- Withdrawal of Suit, Costs Award, Leasehold Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sospeter Moindi
Plaintiff
Siro Mogaka
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Leave to Withdraw Suit
Legal Issues
- 1 Whether the plaintiff should be granted leave to withdraw the suit without an order as to costs.
- 2 Whether the defendant is entitled to costs upon withdrawal of the suit by the plaintiff.
Ratio Decidendi
The court held that while a plaintiff cannot be compelled to proceed with a suit if he wishes to withdraw it, the general rule is that costs follow the event. There were no special circumstances to justify depriving the defendant of costs. Therefore, the plaintiff was granted leave to withdraw the suit, but the withdrawal was ordered with costs to the defendant.
Court Disposition
Plaintiff granted leave to withdraw suit with costs to the defendant.
Orders
- Plaintiff granted leave to withdraw the suit entirely.
- Plaintiff to pay costs to the defendant.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Civil Suit 130 of 2005
SOSPETER MOINDI..................................................PLAINTIFF/APPLICANT
VERSUS
SIRO MOGAKA.................................................DEFENDANT/RESPONDENT
RULING
The plaintiff filed an application under Order XXIV rule 1 of theCivil Procedure rulesandsections 3, 3Aand27 of the Civil Procedure Act. He sought leave to withdraw this suit with no order as to costs.
In his affidavit in support of the application, he stated that he is about 102 years and in poor health.
He had sued the respondent’s father“for unlawfully making himself a partner in plot No. Kisii/Municipality/Block II/66”without his consent. A 33 years lease over the said parcel of land was issued on 9/6/1953 and it expired in 2006. The same was renewed on 3/1/2010 for 99 years with effect from 1/6/1953.
The suit has therefore been overtaken by events, he stated.
The application was opposed. The defendant stated that the plaintiff’s suit lacked merits and added that there was no evidence that the lease over the said parcel of land had been renewed. He said that the plaintiff’s suit ought to be heard or withdrawn with costs.
Considering the nature of the application before me, I cannot compel the plaintiff to proceed with his case if he desires to withdraw the same.
On the other hand, it would be unjust to the defendant to order that the suit be withdrawn without awarding him costs of the same. Ordinarily, costs follow the event.
In the circumstances, I grant the plaintiff leave to withdraw his suit entirely but with costs to the defendant.
DATED, SIGNED AND DELIVERED AT KISII THIS 16TH DAY OF APRIL, 2010
D. MUSINGA
JUDGE.
16/4/2010
Before D. Musinga, J.
Mobisa – cc
N/A for the Plaintiff
N/A for the Defendant
Court: Ruling delivered in open court on 16th April, 2010.
D. MUSINGA
JUDGE.