[2006] KEHC 2869 (KLR)
The court held that since the plaintiff no longer has an interest in the suit, has sold the property to a third party, and is willing to pay the defendant's costs, there is no reason to refuse leave to withdraw the suit. The absence of a counterclaim means the defendant cannot compel the plaintiff to proceed. The...
Source-derived case information.
- Citation
- [2006] KEHC 2869 (KLR)
- Parties
- Plaintiff: Sushilaben Ramniklal Shah; Defendant: Vegetable Bargain Centre Ltd T/A Green House Restaurant
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 63 of 2004
- Procedural Posture
- Civil Case / Ruling on Application for Leave to Withdraw Suit
- Outcome
- Suit withdrawn with leave; plaintiff to pay costs to defendant.
- Judges
- JL Osiemo
- Legal Topics
- Summary Judgment, Withdrawal of Suit, Costs Award, Landlord Tenant Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sushilaben Ramniklal Shah
Plaintiff
Vegetable Bargain Centre Ltd T/A Green House Restaurant
Defendant
Procedural Posture
Civil Case / Ruling on Application for Leave to Withdraw Suit
Legal Issues
- 1 Whether the plaintiff should be granted leave to withdraw the suit under Order XXIV Rule 1 of the Civil Procedure Rules.
- 2 Whether the defendant is entitled to costs upon withdrawal of the suit by the plaintiff.
- 3 Whether the withdrawal of the suit prejudices the defendant due to existing interim orders.
Ratio Decidendi
The court held that since the plaintiff no longer has an interest in the suit, has sold the property to a third party, and is willing to pay the defendant's costs, there is no reason to refuse leave to withdraw the suit. The absence of a counterclaim means the defendant cannot compel the plaintiff to proceed. The only remedy available to the defendant is an award of costs. The court found no merit in the defendant's objection that the withdrawal was an ambush or made in bad faith, as the rules permit withdrawal in such circumstances. Accordingly, leave to withdraw the suit was granted and the plaintiff was ordered to pay the defendant's costs.
Court Disposition
Suit withdrawn with leave; plaintiff to pay costs to defendant.
Orders
- Leave to withdraw the suit is granted.
- The plaintiff shall pay the costs of the suit to the defendant.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 63 of 2004
SUSHILABEN RAMNIKLAL SHAH………………...........................................……………………..PLAINTIFF
VERSUS
VEGETABLE BARGAIN CENTRE LTD
T/A GREEN HOUSE RESTAURANT….......................................................................................…DEFENDANT
RULING
The defendant was a tenant of ………………of the plaintiff on the suit premises known as LR NO.360 TIGONI ROADNAIROBI. It defaulted in rent payment and at the time of filing this suit the arrears stood at Shs.3,400,000/=. The plaintiff filed this suit on 27th January 2004 seeking judgment against the defendant for:
(a) Vacant possession
(b) Rent arrears of Shs.3,400,000/= up to and including 1st November 2003
(c) Mesne profits at the rate of Shs.90,000/= aforesaid from 1st November 2003 until possession is delivered
(d) Costs and interest at court rates on (b) and (c) above from the date of filing suit until payment in full.
The defendant upon being served with summons entered appearance and filed defence in which it denied the claim and sought the dismissal of the plaintiff suit. On 13th December 2004 the plaintiff filed an application under Order XXXV of the Civil Procedure Rules seeking Summary Judgment.
The application came up for hearing before me on 19th September 2005 when Miss Mbugua counsel for the plaintiff started her submissions but due to lack of time she did not complete her submissions. The matter was adjourned and stood over to 6th February 2006. On 6th February 2006 when the application came up for further hearing, she applied for leave to withdraw the entire suit under Order XXIV Rule 1 of the Civil Procedure Rules and informed the court that the plaintiff is ready and willing to pay the defendant the costs of the suit under O.XXIV Rule 1.
Secondly she submitted that she has no counterclaim and the plaintiff cannot be held hostage to continue with the suit if it no longer has interest in it. She further submitted that the plaintiff has already sold the suit premises to a Third Party and any rights over the property were transferred at the time the property was transferred to the said 3rd Party. She concluded by saying that she has no instructions from the rightful owner to proceed with this matter.
Mr. Namada counsel for the defendant opposed the application for withdrawal of the suit on the ground that it was an ambush. He submitted that the application is made in bad faith because there are Interim Orders in favour of the defendant and if this application is allowed, the new Landlord will seize that opportunity to evict the defendant from the suit premises. He concluded that the application to withdraw the suit is incompetent and should not be allowed with due respect to counsel if the plaintiff is no longer interested in its suit and applies for leave to withdraw it cannot be stopped. The only remedy for the defendants is costs and since the plaintiff is not willing to pay the defendant the costs of the suit I see no reason to refuse to grant leave.
Leave to withdraw the suit is granted. The plaintiff to meet the costs of the suit. Orders accordingly.
Dated at Nairobi this 13th day of February 2006.
J.L.A. OSIEMO
JUDGE