[2018] KEELC 4694 (KLR)
The court found that although the suit was withdrawn by consent and the parties are close relatives, the plaintiff's conduct in filing multiple applications and prolonging the litigation for seven years was unreasonable. The court held that the plaintiff, having dragged the defendants to court and pursued the matter...
Source-derived case information.
- Citation
- [2018] KEELC 4694 (KLR)
- Parties
- Plaintiff: Susan Kathmbi (Suing as Legal Representative of the Estate of Silas Kinoti M'Ringera S/O Ikwiga); Defendant: Ringera S/O Ikwinga; Defendant: Gedion Muriuki
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 101 of 2010
- Procedural Posture
- Civil Suit / Ruling on Costs After Withdrawal/settlement
- Outcome
- Plaintiff condemned to pay costs of the suit.
- Legal Topics
- Costs Award, Withdrawal of Suit, Amicable Settlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Susan Kathmbi (Suing as Legal Representative of the Estate of Silas Kinoti M'Ringera S/O Ikwiga)
Plaintiff
Ringera S/O Ikwinga
Defendant
Gedion Muriuki
Defendant
Procedural Posture
Civil Suit / Ruling on Costs After Withdrawal/settlement
Legal Issues
- 1 Whether the plaintiff or the defendants should bear the costs of the suit after withdrawal by consent.
- 2 Whether the conduct of the plaintiff in prosecuting the suit affects the award of costs.
Ratio Decidendi
The court found that although the suit was withdrawn by consent and the parties are close relatives, the plaintiff's conduct in filing multiple applications and prolonging the litigation for seven years was unreasonable. The court held that the plaintiff, having dragged the defendants to court and pursued the matter relentlessly, should bear the costs of the suit. The principle that costs follow the event was applied, and the court found no good reason to depart from this rule in the circumstances. The plaintiff was therefore ordered to pay the costs of the suit to the defendants.
Court Disposition
Plaintiff condemned to pay costs of the suit.
Orders
- Plaintiff to pay costs of the suit to the defendants.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CIVIL SUIT NO 101 OF 2010
SUSAN KATHMBI ( SUING AS LEGAL REPRESENTATIVE OF THE
ESTATE OF SILAS KINOTI M'RINGERA S/O IKWINGA......PLAINTIFF
VERSUS
RINGERA S/O IKWINGA...............................................1ST DEFENDANT
GEDION MURIUKI.........................................................2ND DEFENDANT
R U L I N G
1. On 29:09:17 Mr. Gichuki appearing for Plaintiff addressed the Court as follows:-
“This matter is coming up for mention. I have instructions to mark this case as settled with no order as to costs”
2. Murango for Defendant responded thus:-
“We have no objection but we are asking for costs”.
3. The Court then gave directions as follows:-
“This matter be and is hereby marked as withdrawn. However, the parties to file and serve their respective submissions on the issue of costs to be determined by the Court...”
4. Submissions have been filed and exchanged. I will therefore proceed to determine the issue of costs.
5. Plaintiffs’ have submitted that there is no successful party in the present suit as the settlement was meant to pursue amicable settlement in good faith. Plaintiff has made reference to a quote in Justice Kuloba’s Judicial Hints on Civil Procedurethat “the effect of ordering a party to pay costs is to reimburse the successful party the amounts expounded on the case. It must not be made as a penal measure…” costs are means by which a successful litigant is recouped for expenses which he has been put in fighting an action”.
6. Defence on the other hand avers that it is the Plaintiff who dragged the defendant to court and that the matter has been in court for 7 years.
7. Section 27(1) of the Civil Procedure Act provides that:-
“The courts of any action, cause or other matter or issue shall follow the event unless the Court or Judge shall for good reason otherwise order”.
8. This is a case whereby the parties are close relatives. The Plaintiff is a daughter in law of the Defendant. The case has been marked as settled but the terms of the settlement have not been revealed to this Court. Ordinarily in such a scenario I would be inclined to order that each party do bear their own costs.
9. However, in this case I have perused the record and found that the matter has been in Court for a record 7 years!…” During the lifespan of the suit, the Plaintiff filed numerous applications dated ; 06:08:10, 07:10:10, 22:10:10, 14:11:11, 07:01:13, (dismissed on 06:05:13) and that of 10:06:15 (dismissed on 23:03:16).
10. Although I did not see the litigants in this case, it is submitted that Defendant is very old. He is the father in law of the plaintiff. I find that Plaintiff has dealt with the defendant in a rather merciless way, filing one application after another against defendant for the last seven years. She does not deserve mercy when it comes to costs.
11. Plaintiff is therefore condemned to pay costs of the suit.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 25th JANUARY, 2018 IN THE PRESENCE OF:-
Court Assistant:Janet/Galgalo
Nyakwara H/B for Murango Mwenda for Defendant present
No appearance for plaintiff
HON. L. N. MBUGUA
ELC JUDGE