Automated Summary
Key Facts
The plaintiffs (Faith Warau Macharia t/a Beulah Timber & Hardware and John Mwangi Githae t/a Romes Timber) withdrew their lawsuit on 23 May 2024 after learning the Power of Attorney used to transfer LR No. 209/2762/26 was revoked. The only issue was costs, as the suit was terminated before the defendants (Harjinder Kaur Dhanjil and Jovan Humphrey Kariuki Ing'ura t/a Moran Auctioneers) filed an appearance or defense. The court ruled that the suit was withdrawn due to the revoked Power of Attorney and ordered each party to bear their own costs.
Deceased Name
Guardial Kaur Sihra
Issues
- The court assessed if the Defendants, who made several court appearances but never filed an appearance or defense, could claim costs under the Civil Procedure Rules and Act, concluding that they are not entitled as the suit was withdrawn before formal entry into the proceedings.
- The court determined the allocation of costs following the withdrawal of the suit, considering Order 25 Rule 3 and Section 27 of the Civil Procedure Act, which outline the general rule that costs follow the event but allow for exceptions based on good reason.
Holdings
- The court determined that the Defendants are not entitled to costs because the suit was withdrawn before they entered an Appearance or filed a Defence. It was emphasized that the several court appearances made by the Defendants' Counsel are immaterial in this context, as an Appearance is required to be part of the suit for cost entitlement.
- The court directed that each party shall bear their own costs, noting that the suit originated from actions of the Defendants but was withdrawn prior to any formal defence. This aligns with the discretion under Section 27 of the Civil Procedure Act and the principle that costs follow the event unless the court deems otherwise for good reason.
Remedies
The court directed that each party shall bear their own costs in this matter. This determination was made because the suit was withdrawn before the Defendants filed an appearance or defense, despite their counsel's court appearances. The ruling aligns with Order 25 Rule 3 and Section 27 of the Civil Procedure Act, emphasizing that costs follow the event unless the court has good reason to depart from this rule.
Legal Principles
The court relied on Section 27 of the Civil Procedure Act, which establishes the general rule that costs follow the event but allows judicial discretion to deviate for good reasons. It also applied Order 25 Rules 1 & 3 regarding the right to withdraw suits and cost applications. Citing the case of Jasbir Singh Rai & Others vs Tarlochan Rai & Others, the court emphasized that withdrawal before defense filing disqualifies defendants from costs, even with prior court appearances. The decision incorporated Mativo J's framework from Cecilia Karuru Ngayu v Barclays Bank for evaluating cost orders, including party conduct, litigation subject matter, and constitutional reconciliation mandates.
Succession Regime
The succession regime is not explicitly specified in the document.
Precedent Name
- Cecilia Karuru Ngayu v Barclays Bank of Kenya & Another
- Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others
Cited Statute
- Advocates Remuneration Order
- Civil Procedure Rules
- Civil Procedure Act
Judge Name
Christine Ochieng
Passage Text
- To my mind, in determining the issue of costs, the court is entitled to look at inter alia (i) the conduct of the parties, (ii) the subject of litigation, (iii) the circumstances which led to the institution of the proceedings, (iv) the events which eventually led to their termination, (v) the stage at which the proceedings were terminated, (vi) the manner in which they were terminated, (vii) the relationship between the parties and (viii) the need to promote reconciliation amongst the disputing parties pursuant to Article 159(2)(c) of the Constitution.
- 16. Based on the facts before Court while associating myself with the decisions cited, noting that this suit emanated from certain actions of the Defendants, I find that the Defendants are not entitled to costs since the suit was withdrawn before they entered an Appearance nor filed a Defence. I opine that it is immaterial whether they made several court appearances or not.
- 17. In that regard, I direct that each party do bear their own costs.