Joseph Gachagua & Samuel Bundotich v Alice C. Kalya, Rhoda Ahonobadha, Duncan Mwangi, Ken Omanga & Batram M. Muthoka (Sued on their own behalf and on behalf of the Agriculture Society of Kenya) [2015] KEHC 1347 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.136 OF 2015

JOSEPH GACHAGUA …….…………………………….1ST PLAINTIFF

SAMUEL BUNDOTICH….……………………………..2ND PLAINTIFF

VERSUS

ALICE C. KALYA …..….……………………………….1ST DEFENDANT

RHODA AHONOBADHA……....……………………...2ND DEFENDANT

DUNCAN MWANGI……..…..………………………….3RD DEFENDANT

KEN OMANGA …….…………………………………..4TH DEFENDANT

BATRAM M. MUTHOKA …….......…………………….5TH DEFENDANT

(Sued on their own behalf and on behalf

Of the Agriculture Society of Kenya)

RULING

This ruling determines the issue of whether or not the defendants are entitled to costs of a suit that was wholly withdrawn.

The defendants through  their counsel Mr Milimo submitted  that albeit  the defendants were not served  with summons to enter  appearance  or process but that  they  were informed  of the suit  and  what it intended  to do and  that out of due diligence they got particulars  of the suit and  filed a memorandum of appearance  and defence before  the withdrawal  of the suit.

The Memorandum of Appearance was filed on 30th April 2015 and statement of defence filed on 17th April 2015.  He submitted that they also filed grounds of opposition and served all the documents upon the plaintiffs.

He therefore contended that they are entitled to costs as a matter of right, having participated as parties who were sued, since notice of withdrawal was not filed before their participation in the proceedings, and that the defendants had incurred costs in hiring an advocate.

Miss Gichuhi counsel for the plaintiffs left the matter to this court to determine since no service of summons or other documents was effected on the defendants.

The history of  this matter  is that  on 8th April 2015, the plaintiffs  through the firm of Wanyaga  and Njaramba advocates instituted  suit against  the defendants  herein, who  were officials of Agricultural Society  of Kenya in their capacity  as officials of the said society claiming that the defendants  had purported to make new Rules of  the Society ( the Green Book) contrary to the provisions  of the Constitution  and that when the plaintiff  submitted their application to vie for offices of National Chairman  of the Agricultural Society of Kenya as required under the Agricultural Society of Kenya Constitution, they were notified by the         1st  defendant in her capacity  as the chair of the Electoral Committee, that their applications had been rejected citing that the plaintiffs  were not  in good standing   with the society, which  action was wrong, and  based on an earlier  decision.

It was also contended that some Council members were unilaterally and unconstitutionally removed from membership thereby making them ineligible to vote, among other allegations.  The plaintiffs therefore sought for injunctive and declaratory orders against the defendants jointly and severally and an order that the society conducts its elections in accordance with the Society’s Constitution.  They sought  for a declaration  nullifying  the elections; the new rules; the validity  of council members and a permanent  injunction restraining  the defendants  from approving, presenting, tabling or in any other  way putting  into effect  the results of the purported  elections of                    27th February 2015.

The record shows that no summons to enter appearance were taken out or issued, admittedly, no service of any process was ever effected upon the defendants.

Nonetheless, as submitted by the  defendants counsel, they learnt  of the existence of  the suit from undisclosed  sources and what it intended to do and they  accordingly  entered  an appearance  on 17th April 2015  and filed  defence  on 30th April 2015.

The plaintiff had, simultaneous with the filing of suit also lodged an application seeking for a injunctive orders.  The said  application  was brought  under certificate  of urgency and on 9th April 2015 Honourable Mbogholi Msagha  J declined to certify the matter  as urgent for reasons  that despite  the plaintiff having received  notice  of  an Annual General Meeting on 10th March 2015,  they had waited until 8th April 2015  to present  their application for  injunction.  He directed that the application follows the normal steps for listing.

Later on 10th June 2015, the matter was brought before Mabeya J duty Judge to certify the application dated 8th June 2015 as urgent.  The latter application sought leave of court for the plaintiff’s advocates to cease acting for the plaintiffs for lack of instructions.  Honourable Mabeya J rejected/declined to certify that application  as urgent and  on 12th June 2015  the plaintiff’s advocates filed notice to withdraw the said application  which  withdrawal was effected  by the Deputy Registrar  on 9th July 2015.

On 12th June 2015, the plaintiff’s counsel also filed notice of withdrawal/discontinuance of suit under Order 25 Rule 1 of the Civil Procedure Rules and the Deputy Registrar endorsed that withdrawal/discontinuance on 9th July 2015.

On 8th July 2015, vide a  request  for judgment  on costs  under Order 25 Rule 3  of the Civil Procedure Rule, the defendants’  counsels  sought judgment  for costs  in the matter hence this ruling.

I have carefully considered the request for judgment for costs and the submissions by counsel for the defendants.

The applicable law for judgment  for costs on a wholly discontinued or withdrawn  suit is Order 25 Rule 3 of the Civil Procedure Rule  which provides:

“ Upon discontinuation  of a suit and  upon request   in writing by any defendant the Registrar  has the power  to sign  judgment  for the costs of a suit  which has been wholly discontinued, and, any defendant  may apply  at the hearing for the costs of  any part  of the claim against him which  has been wholly withdrawn.”

The statutory substantive provisions for costs are as enacted in Section 27 of the Civil Procedure Act.  The Section enacts that:

1. Subject to such conditions and limitations  as may be prescribed, and  to the provisions of any law  for the time being  in force, the costs  of and incidental  to all  suits  shall be in the discretion of the court or  judge, and the court or judge shall be in the discretion of the court or  judge, and the court or judge  shall have  full power  to determine  by whom and out of  what property  and to what extent  such  costs are  to be paid, and to give  all  necessary directions for the purposes  aforesaid; and the fact that  the court  or judge  has no jurisdiction to try the suit  shall be no bar to the exercise  of those powers; provided that the costs  of any action, cause  or other matter or issue  shall follow the event unless the court  or judge  shall  for good reason otherwise order.”

The principle  of costs follow the  event  was discussed by the Court of Appeal in Devram Nanji  Datan v Haridas Kalidas Dawda CA 11/1949  16 EACA 35 where Sir  John Gray CJ stated:

“ A successful defendant who after all is brought into account  against his will, can only be deprived of his costs  when it  is shown that his conduct, either  prior  to or during course of action, has led to litigation which but for his own  conduct might have  been  averted.”

In R. V SPM Mombasa & Others Exparte Nicholas Katumo Peter MombasaMisc. CA CJR 65/2013 the court held:

“The court must consider that litigation as with other legal business is costly in terms of time, Money, inconveniences  and the  opportunity cost while  attending to  the court  matter, and  a party  who by conduct  causes  another to  seek relief  in court or  who seeks  court’s intervention upon grounds that  the court ultimately dismisses as unmeritorious  must be  ready to meet the costs incurred by the other party in seeking  the court’s intervention  or in defending  himself or protecting  his interests  in the subject matter.  The successful party is entitled to the costs in accordance with the principle that costs follow the event.  The law as set out in Section 27 of the Civil Procedure Act requires good reasons for departing from the said principle.”

Further, in Singh V Gurbanlite Ltd (1985) KLR 920 the Court of Appeal held that the discretion of the court is to be exercised as the basis of the extent of success of the case.

In this matter, it is clear that there was no successful party as such.  The suit and motion were filed and subsequently withdrawn before service of any process was effected upon the defendants.  The  defendants  nonetheless  learnt  of  the existence of  the suit from  their own  undisclosed sources  and hired an advocate   who entered an appearance  and filed defence on their behalf and upon  the suit  being withdrawn/discontinued, they  now  seek judgment  for costs.

This court notes that the notice of withdrawal of the suit is dated 12th June 2015 and was filed in court on the same day.  However, the same never took effect until that notice was endorsed by the Deputy Registrar on 9th July 2015 by way of an order.  That latter date is when the order of the court endorsed the withdrawal of suit was made.  Yet, the request for judgment for costs was made on 8th July 2015, vide request dated 6th July 2015, by which time no suit had been withdrawn.  Obviously  that  request was  premature  as there  was no order endorsing  the withdrawal of the suit  as at  8th July 2015.

Consequently, and on tat ground alone that the request for judgment for costs was premature and therefore misconceived, I proceed to strike out that request for judgment on costs for a withdrawn/discontinued suit.

On the other hand the defendants entered appearance and filed defence on their own volition, without any invitation by the plaintiff or by the court.  They admit  in their  submissions  that indeed they were never served  with any court process  in this matter but  having learnt of  its existence  and what it  intended to  do, they entered  an appearance  and filed defence  thereto hence they  should  be paid  costs of the suit as withdrawn.

The notice of withdrawal of suit was to be served upon the defendants but there is no evidence that they were served.  Even if that were to be the case, this court does not find any merit in the request. It is only service of process that invites a party to the suit to file a response especially in interlocutory applications and in cases of the main suit, only summons to enter appearance invites the defendant to enter an appearance and file defence.

My  appreciation of the record is that no sooner  had the plaintiffs filed this suit than they realized that they ought not  to have filed it in the first  instance especially  after the  court declined  to entertain  the certificate of urgency.  A party can only enter appearance and file defence after being served with summons to enter appearance and copy of plaint.

In this case, not even the interlocutory application seeking injunctive orders was ever served upon the defendants thereby inviting them to file any response.  Neither were there in place any injunctive exparte orders against the defendants necessitating urgent action.  In the circumstances of this case, this court does not find merit in such request which is hereby declined.

This court  finds that  in the absence of any evidence  that the defendants  were  served with any court process requiring them to do anything  in this matter, the request  for judgment on costs of  a  wholly discontinued suit  which  Order the Deputy Registrar has powers to make under  Order 25 Rule 3  of the Civil Procedure Rules lacks merit and is accordingly dismissed  with no  orders  as to costs.

Dated, signed and delivered in open court at Nairobi this 6th day of October 2015.

R.E. ABURILI

JUDGE

6/10/2015

Coram R.E. Aburili J

C.A. Henry

Miss Gichuhi for plaintiff

No appearance for defendant

COURT – Ruling read and pronounced in open court as scheduled.

Ruling to be typed forthwith.

R.E. ABURILI

JUDGE

6/10/2015