BP Ombuki Associates v Mwaniki & 3 others [2025] KECPT 168 (KLR)

BP Ombuki Associates v Mwaniki & 3 others (Tribunal Case 618/E408 of 2021) [2025] KECPT 168 (KLR) (30 January 2025) (Ruling)

Neutral citation: [2025] KECPT 168 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 618/E408 of 2021

Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, M Chesikaw & PO Aol, Members

January 30, 2025

Between

BP Ombuki Associates

Claimant

and

Francis Mwania Mwaniki & 3 others & 3 others & 3 others & 3 others

Respondent

Ruling

1. The claim herein was filed by the claimant against the 1st to 4th Respondents on 19th January 2022. The 1st and 3rd Respondents entered appearance on 16th February, 2022 and filed statement of Defence on 21st February, 2022. The 4th Respondent entered appearance on 21st February, 2022 however, there is no evidence that he filed a statement of Defence or response to the claim.However, all the 1st, 3rd and 4th Respondents thereafter filed written witness statements and the 1st and 3rd Respondents filed a List of Documents.The 2nd Respondent having failed to enter appearance at all.

2. On 17th July, 2023, the matter came up for confirmation of compliance with pre-trial, when the Claimant’s advocate sought to withdraw the suit with no order as to costs. The Respondent’s advocates objected to withdrawal with no order as to costs, stating that the Respondents had incurred costs.

3. Consequently, as parties could not agree on costs, the matter was marked as withdrawn and directions were given to parties to file written submissions on costs.The claimant filed submissions dated 25th October, 2024 while the 1st and 3rd Respondents filed written submissions dated 8th October, 2024. As at the time of writing this ruling, the 4th Respondent had not filed written submissions.

Analysis 4. We have considered the submissions of the parties and the case number cited herein and have only one issue, for determination , that is, whether or not the Respondents are entitled to costs upon withdrawal of the claim.It is not in dispute that the Claimant withdrew its case when the same was ready for hearing and had been fixed for hearing more than once. It is also not disputed that the 1st, 3rd and 4th Respondent entered appearance and filed all the requisite documents in preparation for hearing, it is trite that upon withdrawal of a suit are within the discretion of the court. Order 25 Rule 2 sub-rule (2) provides that:“where a suit has been set down for hearing, the court may grant the plaintiff leave to discontinue his suit or to withdraw any part of his claim upon such terms as to costs…”

5. It is our finding that the 1st, 3rd and 4th Respondents herein are entitled to costs as may be assessed by the Deputy Registrar.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF JANUARY, 2025. HON. J. MWATSAMA DEPUTY- CHAIRPERSON SIGNED 30. 1.2025HON. BEATRICE SAWE- MEMBER SIGNED 30. 1.2025HON. FRIDAH LOTUIYA -MEMBER SIGNED 30. 1.2025HON. PHILIP GICHUKI-MEMBER SIGNED 30. 1.2025HON. MICHAEL CHESIKAW -MEMBER SIGNED 30. 1.2025HON. PAUL AOL -MEMBER SIGNED 30. 1.2025TRIBUNAL CLERK MUTAIOjuok advocate holding brief for Modi advocate for the 4th RespondentMs. Chepngeno advocate for the ClaimantTribunal orderRuling deliveredRespondent to file Bill of Costs and get a dateFile ordered as closed.HON. J. MWATSAMA -DEPUTY CHAIRPERSON SIGNED 30. 1.2025