Kyunga v Kenya Commercial bank Ltd & another; Karaya (Interested Party) (Environment and Land Case 324 of 2008) [2024] KEELC 4273 (KLR) (2 May 2024) (Ruling)
Neutral citation:
[2024] KEELC 4273 (KLR)
Republic of Kenya
Environment and Land Case 324 of 2008
LL Naikuni, J
May 2, 2024
Between
Julius Musili Kyunga
Plaintiff
and
Kenya Commercial bank Ltd
1st Defendant
Joel Titus Musya t/a Makuri Enterprises
2nd Defendant
and
James Muriuki Karaya
Interested Party
Ruling
I. Introduction
1.This Honourable Court is tasked on making the determination of the Notice of Motion application dated 18th May, 2022 by James Muriuki Karaya, the Interested Party herein under the provision of Order 8 Rules 3, 5, and 7, Order 51 Rule 1, Order 11 Rule 7 of the Civil Procedure Rules (2010), Sections 1A, 1B, 63(e) and 100 of the Civil Procedure Act(Cap 21) Laws of Kenya and all other enabling Provisions of the Law.
2.Upon effecting service, it was only it’s only the Former Plaintiff and the 1st Defendant in the Counter - Claim who filed both the Grounds of Opposition dated 7th June, 2022 and on 1st February, 2024 filed their written submissions thereof. Thus, the Court has decided to make its determination on it on merit.
II. The Notice of Motion application dated 18th May, 2022
3.The Interested Party sought for the following orders:-
4.The application by the Interested Party herein was premised on the grounds, testimonial facts and averments made out under the 26th Paragraphed Supporting Affidavit of James Muriuki Karaya, the Interested Party/ Applicant herein with five (5) annextures marked as “JMK 1 to JMK 5” sworn and dated 18th May, 2022 averred that:a.On the 11th November, 2008 the Interested Party/Applicant entered an agreement of sale with the 2nd Defendant herein, Joel Titus Musya t/a Makuri Enterprises to purchase all that land known as LR 2812/I/MN Shanzu, the suit property, after being the successful bidder at a Public Auction and paid the required deposit. Annexed in the affidavit and marked as “JMK – 1”.b.At the fall of the hammer, property in the suit land passed to the Interested Party/Applicant.c.Before completing the transaction, the Plaintiff filed this suit on 13th November, 2008 seeking inter alia for the nullification of the charge document dated 4th September, 1997 in respect of LR 2812/1/MN against the Defendant, restraining it from selling, or otherwise alienating, mortgaging, or otherwise dealing with LR No.2812/I/MN and the account between the parties be declared as settled or if not the debt be recovered through a civil suit.d.Upon filing the said suit, the Plaintiff obtained successive orders of injunction both before this court and in the Court of Appeal, barring the Interested Party/Applicant from proceeding to complete the sale and register his interest with the last ruling being delivered on 22nd April, 2016 by the Court of Appeal, dismissing the appeal by the Plaintiff.e.In the meantime, vide a Notice of Motion application dated 20th January, 2009,the Interested Party/Applicant sought leave to be joined into the suit, which application was granted on 30th March, 2009 and on 4th May, 2009, and he filed defence and counter-claim.f.On 4th of June, 2010, the Plaintiff filed another application for injunction pending the hearing and disposal of the appeal filed and obtained interim orders, until the 20th December, 2012 when the application was allowed and a conservatory order of 60 day was granted pending the hearing and disposal of the appeal in civil appeal no. 3 of 2013.g.Ruling in that appeal was delivered on 12th February 2015,and the appeal was dismissed.h.On 16th March, 2016, the Plaintiff filed a Notice of Motion for a conservatory order which was heard and dismissed on 30th October, 2015.i.The Plaintiff again filed another application in the Court of Appeal no. 64 of 2015 which was dismissed on 22nd April 2016. Annexed in the affidavit and collectively marked “JMK - 2” were true copies of the relevant Rulings/Judgements.j.Upon the dismissal of the last appeal the Interested Party/Applicant wrote numerously to the Defendants to complete the sale entered into on 11th November, 2008, but the Defendants refused.Annexed in the affidavit and collectively marked as “JMK -3” were true copies of the relevant correspondence.k.He then filed a civil suit - Cmcc (Mombasa) No. 1365 of 2016 to compel the 1st Defendant to complete the transaction, but which suit has been stayed. Annexed in the affidavit and collectively marked as “JMK - 4” were true copies of the relevant pleadings.l.Unbeknownst to the Interested Party/Applicant, the 1st Defendant herein had quietly allowed the Plaintiff to purport to redeem the suit property, granted him a discharge which was then registered on 30th August, 2016 and released the original title to him.m.The Plaintiff had then attempted to transfer the property, but because of the orders of the court prohibiting dealing in the property, he was unable to do so and on 21st June, 2017 the Defendant applied through the Notice of Motion application dated 20th June, 2017, to rectify the register and remove the conservatory orders thereby allowing him to transfer the property thus defeating Applicant's rights in the property.n.In the said application, the Applicant learnt that the Plaintiff and the Defendant had secretly reached a consent dated 11th July, 2016 and filed in court on 12th July, 2016, whose effect was to withdraw this suit and mark it as settled, thus defeating the interests of the Interested party.o.In the Ruling of the court delivered on 30th May, 2019, the court set aside the Consent Order of 11th July, 2016 and all consequential orders but allowed the Notice of Withdrawal of the suit to remain in force and thus the suit between the Plaintiff and the Defendant became withdrawn.p.On 5th November, 2020, the 1st Defendant applied for leave to file defence to the counterclaim, by the interested party and file witness statements, list of documents and list of witnesses which application was allowed on 3rd June, 2021.q.The Interested Party/Applicant was not granted a corresponding leave to file fresh documents.r.The recent developments since this case was filed in the year 2008 have altered the character of the case by the Applicant and need to be brought to the attention of the court by amending the Defence and Counterclaim.s.If the application is not allowed, the Applicant stands to suffer immensely as his interests will not have been properly protected in the suit as is presently.t.The Respondents never stood stand to suffer any prejudice if the application was allowed.u.The current situation was occasioned purely by the Respondents by their actions and could not be blamed on the Applicant.v.The suit would have been defaulted if it is allowed to proceed as it is.w.He believed it was in the interest of justice that the application be allowed
III. Submissions
5.On 31st May, 2022 while all the parties were present in Court, they were directed to have the Notice of Motion application dated 18th May, 2022 be disposed of by way of written submissions and all the parties complied. Pursuant to that, it was only the Former Plaintiff and the 1st Defendant in the Counter Claim who obliged and on 14th February, 2024 a ruling date was reserved on 10th April, 2024 by Honourable Court accordingly.A. The Written Submissions by the Former Plaintiff and the 1st Defendant in the Counter Claim
6.While opposing the application dated 18th May, 2022, by the Interested Party, the Learned Counsels for the Former Plaintiff and the 1st Defendant in the Counter Claim the Law firm of Messrs. Munyithya, Mutugi, Umara & Muzna Advocates filed their written submission. Mr. Munyithya Advocate commenced by stating that these were the submissions of the Former Plaintiff – Mr. Julius Musili Kyunga. Briefly, the Learned Counsel informed Court that Mr. Kyunga (Hereinafter referred to as “The Former Plaintiff”) filed this suit way back in the year 2008. The parties were Kenya Commercial Bank Limited and Joel Titus Musya (the 1st and 2nd Defendants respectively). Later, Mr. James Muriuki Karaya applied and was joined as an Interested Party in the matter. He invited the court is invited to look at the application by the Former Plaintiff dated 4th November, 2020 and filed in court on 5th November, 2020. In support of that application was a supporting affidavit which disclosed the following:-a.The interested party had filed an application dated 2nd January, 2009.b.The application was allowed by Sergon J. (now J.A) on 1st April, 2009. Thereafter, no directions were given as to the nature of documents the Interested Party would file. At the same time the pleadings were never amended to include the name of the Interested Party.c.On 4th May, 2009, the Interested Party filed a Defence and Counter - Claim. As at that moment, the pleadings had not been amended and no claim had been made against the Interested Party.
7.According to the Learned Counsel, while exercising his right under the law, the Former Plaintiff withdrew this suit on 15th July, 2016. A ruling was then delivered by Hon Yano J. confirming that the Former Plaintiff could not be compelled to proceed with the suit and that he had the right to discontinue the suit. This was part of the court record. On the other hand, the Interested Party wished to continue with the Counter - Claim as drawn. However, in the application dated 18th May, 2022, the Interested Party sought leave to amend his Counter - Claim and introduce further documents.
8.While in opposition of this application, the Former Plaintiff filed four (4) Grounds of Opposition dated 7th June, 2022. These grounds were informed on points of law. The Learned Counsel proceeded to argue them as set out therein as follows:-
9.Firstly, that there was no suit. For that reason, there was no Plaintiff and/or a Defendant. For that reason, there could not be a Counter - Claim and there was nothing for amendments. As to whether there was a suit or not, the issue was fully settled in the ruling against the Notice of Motion Application dated 28th February 2018 of Yano J. delivered on 30th May 2019. For that reason, and whatever happened with the other points raised herein, the heading of this suit must change. The Former Plaintiff could not continue appearing as the Plaintiff even after the suit had been withdrawn.
10.The process of joinder of parties in a suit filed by way of a Plaint only provided for two types of parties namely:- a Plaintiff, the Defendant and a Third Party. There was no provision for an Interested Party. Further, where a party had been joined by the court, there was always direction given for the amendment or pleadings and filing of documents. In the case of a third party, the rules provided for provision of directions after joinder. The third party was allowed to plead within a certain period.
11.In the instance case, the Learned Counsel averred that the Court was dealing with a strange and a foreign party known as an Interested Party. He submitted that such a party was not known in law for a civil suit commenced by way of a Plaint. To buttress on this point, he relied on the case of: “Francis Karioki Muruatetu & Another – Versus - Republic & 5 others, Sup. Ct. Pet. 15 & 16 of 2015 (Consolidated):[2016] eKLR, as follows (paragraphs 41, 42) where the Supreme Court stated:-
12.The Learned Counsel held that the she second ground of objection was that the Interested Party could not and cannot file a Defence of Counter - Claim as there was never a suit against the Interested Party. This ground flows from ground 1. If the Court found out that there was never a suit against the Interested Party, he urged the Court to find that there was no foundation for filing of the Defence and the Counter – Claim.
13.With regard to ground three. It introduced the existence of another suit, namely Civil suit “Cmcc (Mombasa) No. 1365 of 2016. The parties were “James Muriuki Karaya – Versus - Kenya Commercial Bank Limited”. The existence of this suit in the lower court, was part of the court record and was disclosed by the Interested Party in the application dated 18th May, 2022 as annexture marked as “JMK – 4”. This suit was seeking remedies similar to the remedies sought by the Interested Party in the Counter - Claim. The Learned Counsel argued that under the provision of Section 6 of the Civil Procedure Act, Cap. 21, the law denied a court jurisdiction to proceed with a matter which was subject of discussion in another court involving the same subject matter and concerning the same parties. He urged the court to find that the Interested Party could adequately raise his issues before the lower court as properly pleaded in the pleadings voluntarily disclosed by the Interested Party.
14.On the question of sub-judice, the Counsel relied on the following authorities:-The Supreme Court of Kenya in “Kenya National Commission on Human Rights – Versus - Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR”, stated:-
15.Further, he cited the case of “The Court in Ephraim Miano Thamaini – Versus - Nancy Wanjiru Wangai & 2 others [2022] eKLR” relied on the decision in the case of: “David Ndii & others – Versus - Attorney General & Others 2021 eKLR” where a bench of five Judges “inter alia” stated:-
“The rationale behind this provision (Section 6 of the Civil Procedure Act) is that it is vexatious and oppressive for a claimant to sue concurrently in two courts. Where there are two courts faced with substantially the same question or issue, that question or issue should be determined in only one of those courts………”.
“The rationale behind this provision (Section 6 of the Civil Procedure Act) is that it is vexatious and oppressive for a claimant to sue concurrently in two courts. Where there are two courts faced with substantially the same question or issue, that question or issue should be determined in only one of those courts………”.
16.It was the contention of the Learned Counsel that the Interested Party had to elect which suit to proceed with, was it the Counter Claim herein or the CMCC No. 1365 of 2016 but not both suits. In view of this, he concluded by urging Court to find that the Counter Claim lacked merit and the application dated 18th May, 2022 should be dismissed with costs.IV. Analysis & Determination.
17.I have carefully read and considered the pleadings herein by the Interested Party, the Grounds of Opposition by the Former Plaint and the 1st Defendant in the Counter – Claim, the written submissions by the Former Plaintiff and 1st Defendant in the Counter - Claim, the myriad of cases cited herein by said party, the relevant provisions ofthe Constitution of Kenya, 2010 and the statures.
18.In order to arrive at an informed, Just, equitable and reasonable decision, the Honorable Court has four (4) framed issues for its determination. These are:-a.Whether the Plaintiff/ Defendant in Counter - Claim’s grounds of opposition are merited.b.Whether the Interested party can be granted leave to amendhis Defence and Counter - Claim in terms of the draft amended Defence and Counter Claim annexed hereto?c.Whether the Interested Party can be granted leave to the interested Party/Applicant to file supplementary list of witnesses, Statements and documentsd.Who will bear the Costs of Notice of Motion application dated 18th January, 2022.
19.Under this sub – heading, the Honourable Court will be examining whether the Counter – Claim has any merit taking that the fact that the Plaintiff already withdrew the main suit. Thus, the legal concept on Counter Claim and the legal validity, efficacy and effectiveness of a dismissal, staying; or discontinuing or withdrawal of a suit will be critical here. Before raising the issue of amendment, this Honourable Court wants to take note that the former Plaintiff in his grounds of opposition and submission has brought to the Courts attention that he had filed a Notice of Withdrawal on 15th July, 2016. A ruling was then delivered by Hon Yano J. confirming that the Former Plaintiff could not be compelled to proceed with the suit and that he had the right to discontinue the suit. This was part of the court record. The pith and substance of this matter is two – fold a). did the Plaintiff actually withdraw his suit or not? And b). If at all the suit was actually withdrawn, what is the effect of the Counter Claim by the Interested Party?
20.First and fore – most, its significant to appreciate the meaning, nature and scope of the Counter Claim. According to the Black Law dictionary, Counter – Claim means:
21.The law and procedure governing withdrawal or discontinuance of suits, in Superior and Subordinate Courts is found in the provision of Order 25 of the Civil Procedure Rules. The Order is headed “Withdrawal, Discontinuance and Adjustment of Suits”.Rule 1 thereof provides discontinuance of the whole or any part of the Claim where a suit has not been set down for hearing. The procedure thereto has been explained elaborately by the Court of Appeal in the case of:- “Beijing Industrial Designing & Research Institute – Versus - Lagoon Development Ltd (2015) eKLR”.
22.Now to apply this legal principles to the instant case. The Former Plaintiff and now 1st Defendant in the Counter - Claim invited the court to look at the application by the Former Plaintiff dated 4th November, 2020 and filed in court on 5th November, 2020. In support of that application was a supporting affidavit which disclosed the following:-a.The interested party had filed an application dated 2nd January, 2009.b.The application was allowed by Sergon J. (now J.A) on 1st April, 2009. Thereafter, no directions were given as to the nature of documents the Interested Party would file. At the same time the pleadings were never amended to include the name of the Interested Party.c.On 4th May, 2009, the Interested Party filed a Defence and Counter - Claim. As at that moment, the pleadings had not been amended and no claim had been made against the Interested Party.
23.According to the Learned Counsel, while exercising his right under the law, the Former Plaintiff withdrew this suit on 15th July, 2016. A ruling was then delivered by Hon Yano J. confirming that the Former Plaintiff could not be compelled to proceed with the suit and that he had the right to discontinue the suit. This was part of the court record. On the other hand, the Interested Party wished to continue with the Counter - Claim as drawn. However, in the application dated 18th May, 2022, the Interested Party sought leave to amend his Counter - Claim and introduce further documents. The former Plaintiff failed to tell the court that the Interested Party filed a Notice of Motion dated 28th February, 2018 seeking amongst the prayers for the Honourable Court be pleased to set aside the notice of withdrawal of the 3rd defendant’s suit dated 11th July, 2016 filed herein on 12th July, 2016 by the Advocates for the Plaintiff and the setting aside the consent order between the plaintiff and the defendant dated 11th July, 2016, filed on 12th July, 2016 and all consequential orders therefrom, already at this point the Court feels misled by supposed former Plaintiff as the Court in that said application opined itself as follows:-
24.Evidently, and from the Court’s records, this said Notice of Withdrawal had not been admitted by the Court neither had it been endorsed on 15th July, 2016 as stated by the Plaintiff. There is no record of the endorsement of the same in the proceeding and from the said notice, there was a note that same would be endorsed by the Deputy Registrar if the Plaintiff has filed a return of service which is not on the records of the court.
25.Be that as it may, whether the suit was formally withdrawn or not, the Court will still proceed on the validity of the Counter – claim herein. The suit herein was filed on 13th November 2008 by the Plaintiff and on 16th January 2009, the court entered interlocutory Judgement against the 1st and 2nd Defendants. The Interested Party joined the suit vide an order of court on 1st April 2009 as an affected party. However the applicant pleaded that court did not give directions on which documents the parties would file or amend. The Applicant pleaded that the interested party, after been enjoined and without leave of court filed a defence and counterclaim on 4th May 2009. The applicant further claimed that he has since withdrawn the suit herein, but added that while the suit was alive, he had no cause of action against the interested party. The applicant on 23rd February 2021 filed a Notice of Preliminary Objection on the grounds that an interested party does not exist in a suit initiated by a plaint and that the pleadings by the interested party in the form of a statement of defence and counterclaim dated 4th May 2009 is a nullity ab initio and is for striking out with costs. The Honourable Court held that:-
26.But then the Court takes cognizance that on 3rd June, 2021 the Honourable Court dismissed the Plaintiff's Notice of Preliminary Objection dated 23rd February 2021. It opined itself that the Notice of Motion dated 4th November 2020 is allowed and the court made the following directions:-
27.I do fully agree with my brother Justice Yano that denying the Interested Party their day in Court would tantamount to infringing his constitutional rights to fair hearing as enshrined under the provision of Articles 25 ( c ) and 50 ( 1 ) and ( 2 ), which guarantees every person the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court. Additionally, under the same breath, the Interested Party is entitled to fair administrative action as enshrined under the provision of Article 47 ofthe Constitution of Kenya, 2010. There is nowhere in the Court record that the Interested Party was barred from filling the Counter - Claim and amending it. The Court takes note that in regards to a Counter - Claim being in operation after the main suit has been withdrawn by the Plaintiff, the general principle is that a Counter - Claim can be and in most cases it is distinct and independent of the Plaintiff’s original claim. In simple terms, therefore, this means that even if the main suit is dismissed or withdrawn, the Counter - Claim can still proceed on its own. In saying so, I reiterate that a Counter - Claim is considered an independent action. Thus, the withdrawal or dismissal of the main claim does not automatically affect the prosecution of the Counter - Claim. Therefore as my brother Justice Yano previously stated the withdrawal of the suit by the Plaintiff did not in any way affect the Interested Party’s Counter – Claim.
28.For the above stated reasons, therefore, I discern that the Counter – Claim filed by the Interested Party herein has all the legal validity and effectiveness. Thus, I shall proceed to examine the Interested Party’s Notice of Motion application on amendment of its Statement of Defence and Counter - Claim.
29.Under this sub-title, this Honourable Court will examine the amendment of the Defence and Counter claim. Amendment of pleadings are anchored on the provisions of Order 8 Rule 5(1) of the Civil Procedure Rules which provides;
30.Further Order 8 Rule 3(1) and (5) of the Civil Procedure Rules, 2010 which provides as follows:-
31.This provision of the law gives the court the legal mandate to allow amendment of pleadings at any stage of the proceedings on such terms that may be just. The amendment sought in this case is due to the recent developments since this case was filed in year 2008 have altered the character of the case by the Applicant and need to be brought to the attention of the court by amending the Defence and Counter - Claim.
32.In the case of “Rubina Ahmed & 3 others -Versus - Guardian Bank Ltd (Sued in its capacity as a successor in Title to First National Finance Bank Ltd) [2019] eKLR” the Court of Appeal while dismissing an appeal relied on Halsbury’s Laws of England, 4th Ed. (re-issue), Vol. 36(1) at paragraph 76, which stated the following about amendments of pleadings:-
33.Principally, the court has the power to amend pleadings which power can be exercised at any stage of the proceedings before judgment as per Bullen and Leake & Jacob's Precedents of Pleading, 12th Edition, which provides as follows concerning amendment of pleadings:
34.Similarly, in Halsbury’s Laws of England, 4th Ed. (re-issue), Vol. 36(1) at paragraph 76, state the following about amendments of pleadings: -
35.In the instant case, the Interested Party/Applicant sought for leave to amend the his defence and counter claim being that on 5th November, 2020, the 1st Defendant applied for leave to file Defence to the Counter - Claim, by the interested party and file witness statements, list of documents and list of witnesses which application was allowed on 3rd June, 2021. The Interested Party/Applicant was not granted a corresponding leave to file fresh documents. The recent developments since this case was filed in 2008 have altered the character of the case by the Applicant and need to be brought to the attention of the court by amending the Defence and Counterclaim.
36.Under the provision of Order 8, Rule 3 of the Civil procedure Rules, 2010, the court has unfettered discretion to allow an amendment of pleadings. It is trite that the discretion ought to be exercised judiciously and not capriciously. Courts should freely allow amendments but this discretion should be exercised judiciously. Thus, for these reasons, I discern that the prayer for leave to amend the Interested Party’s pleadings is merited and hence be hereby allowed.
37.Under this sub-title the Honourable Court shall examine if the Interested Party has made out a case for the grant of leave to file supplementary list of witnesses, statements and documents. In legal proceedings, the concept of “leave to file” refers to seeking permission from the court to take a specific action. In this case, the Plaintiff in the matter of “Husaain Hasanali Jivani – Versus - Merali Jivra Tajdin & Anor (Civil Suit No. 471 of 2015)” sought leave to file supplementary witness statements.
38.There are three principles that this Honourable Court will consider in granting leave:-a.Seriousness and significance of the failure to comply with rules or court orders.b.Triviality of the failure.c.Efficient progress of litigation, even if no specific prejudice occurred.
39.According to the Interested Party, on the 11th November, 2008 the Interested Party/Applicant entered an agreement of sale with the 2nd Defendant herein, Joel Titus Musya t/a Makuri Enterprises to purchase all that land known as LR 2812/I/MN Shanzu, the suit property, after being the successful bidder at a Public Auction and paid the required deposit. Annexed in the affidavit and marked JMK 1. At the fall of the hammer, property in the suit land passed to the Applicant/Interested Party. Before completing the transaction, the Plaintiff filed this suit on 13th November, 2008 seeking inter alia for the nullification of the charge document dated 4th September, 1997 in respect of LR 2812/1/MN against the Defendant, restraining it from selling, or otherwise alienating, mortgaging, or otherwise dealing with LR No.2812/I/MN and the account between the parties be declared as settled or if not the debt be recovered through a civil suit.
40.Upon filing the said suit, the Plaintiff obtained successive orders of injunction both before this court and in the Court of Appeal, barring the Interested Party/Applicant from proceeding to complete the sale and register his interest with the last ruling being delivered on 22nd April, 2016 by the Court of Appeal, dismissing the appeal by the Plaintiff. In the meantime, vide a Notice of motion dated 20th January, 2009, the Interested Party/Applicant sought leave to be joined into the suit, which application was granted on 30th March, 2009 and on 4th May, 2009, and he filed Defence and Counter - Claim.
41.The trial on the Interested Party’s counter claim is at its early stages and no prejudice will be caused to the Plaintiff. The other parties to the suit will have an opportunity to interrogate the said evidence at the trial. No prejudice will be caused to the other parties to the counter claim who can file additional statements should she deem it necessary to do so. The Court has considered and weighed the matter of prejudice to the parties in the suit and finds that no prejudice will be suffered because the hearing of the Counter claim had not commenced by the time of the filing of the motion to amend the defence and counter claim filed in 2009.
42.In the interest of justice and guided by Article 50 ofthe Constitution read together with the provision of Article 159 (2) (d) ofthe Constitution of Kenya, 2010 and to maintain fair play in the hearing of the case. Therefore, I find the prayer to be merited and thus allow it.
43.It is now well established that the issue of Costs are at the discretion of the Court. The Black Law Dictionary defines cost to means:-
44.In other words, Costs mean the award a party is awarded at the conclusion of a legal action or proceedings in any litigation. The provision of Section 27 of the Civil Procedure Act, Cap. 21 grants the High Court discretionary power in the award of costs which ordinarily follow the event unless the Court for good reasons orders otherwise. Section 27 (1) of the Civil Procedure Act provides as follows;-
45.A careful reading of the provision of Section 27 indicates that it is considered trite law that costs follow the cause/event, as described by Sir Dinshah Fardunji Mulla in his book The Code of Civil Procedure, 18th Edition, 2011 reprint 2012 at 540, is that costs must follow the event unless the court, for some good reasons, orders otherwise.
46.Additionally, the provision provides for ‘costs of and incidental to all suit or application’ which expression includes not only costs of suit but also costs of application in suit as described by Mulla (supra) at 536. Furthermore, Rtd. Justice Richard Kuloba in his book Judicial Hints on Civil Procedure, 2nd Edition, 2005 at 95 notes that the words ‘the event’ means the result of all the proceedings incidental to the litigation. Accordingly, the event means the result of the entire litigation. The order as to costs as provided for under section 27 remains at the discretion of the court.
47.The award of costs is therefore not cast in stone but courts have ultimate discretion. In exercising this discretion, courts must not only look at the outcome of the suit but also the circumstances of each case. In the case of:- “Morgan Air Cargo Limited – Versus - Everest Enterprises Limited [2014] eKLR” the court noted that;
48.In this case, as this Honourable Court has opined above, the Applicant has convinced the Honourable Court to grant the prayers sought in the notice of motion application, therefore he shall have to costs of the application.
V. Conclusion & Disposition
49.In long analysis, the Honorable Court has carefully considered and weighed the conflicting parties’ interest as regards to balance of convenience. Ultimately in view of the foregoing detailed and expansive analysis to the rather omnibus application, this court arrives at the following decision and makes below order:-a.That the Notice of Motion application dated 18th May, 2022 is found to have merit is hereby allowed in its entirety.**b.*That this Honourable Court be and hereby grants leave to the Interested Party/ Applicant within the next seven (7) days from the date of this Ruling to amend, file and serve the Amended Defence and Counter Claim in terms of the draft amended Defence and Counter Claim annexed hereto.c.That similarly this Honourable be and hereby grants leave to the Interested Party/Applicant to file and serve supplementary list of witnesses, Statements and documents.dThatan order granted to the Plaintiff to have corresponding leave to file and serve Amended Plaint and Reply to the Amended Defence and Defence to the Amended Counter Claim within 7 days from the date of service accordingly.eThat for expediency sake, this matter be fixed for hearing on 26th September, 2024.There shall be a mention on 17th July, 2024 for conducting a Pre – Trail conference pursuant to the provision of Order 11 of the Civil Procedure Rules, 2010.f.That the costs of the Notice of Motion application dated 18th May, 2022 are awarded to the Interested Party/ Applicant
IT IS SO ORDERED ACCORDINGLY
RULING DELIEVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS 2NDDAY OF MAY 2024.HON. JUSTICE L. L. NAIKUNI,ENVIRONMENT AND LAND COURT ATMOMBASARuling delivered in the presence of:a. M/s. Firdaus Mbula, the Court Assistant.b. No appearance for the Plaintiff/Respondent.c. Mr. Waweru for the 1st Defendants/Respondents.