Judith Cherono Mosonik (Suing as the administrator of the estate of Adrew Kiprotich Chepkwony (Deceased) v Dickson Kipkemboi Kipkemboi Kiplagat Changwony & Joyce Jepkemboi Toroitich [2019] KEELC 753 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NAKURU

ELC  CIVIL  CASE  NO  25 OF 2015

JUDITH CHERONO MOSONIK (Suing as the administrator of the estate of

ADREW KIPROTICH  CHEPKWONY (DECEASED).................................................PLAINTIFF

VERSUS

DICKSON KIPKEMBOI KIPKEMBOI KIPLAGAT CHANGWONY............1ST DEFENDANT

JOYCE JEPKEMBOI TOROITICH....................................................................2ND DEFENDANT

R U L I N G

1 The defendants by a Notice of Motion  dated  14th  March  2019 brought  under  Order 25 Rule 4 of the Civil Procedure Rules and Sections 3A, 1A & 1B of the Civil  Procedure Act seeks  an order that :-

“The Court be pleased to stay proceedings in the matter  herein until payment of cost amounting to Kshs 71,425/= of the previously withdrawn  suit filed by the plaintiff raising  the same cause of action over the same subject matter against the 1st  Defendant being case “Nakuru CMCC No 126 of 2014 which costs should  be settled  before  further action in the matter ”

2  The grounds upon which the application is founded are set out on the body of the application and the affidavit sworn in support of the application by the applicant /1st defendant  The applicant avers that the plaintiff filed Nakuru CMCC No 126 of 2014 which the plaintiff wholly withdrew on 18th November 2014  The applicant states he had filed a defence in the case and after the withdrawal applied for costs pursuant to the provisions of Order 25 Rule 3 of Civil Procedure Rules on 2nd March 2015  He avers that costs were assessed by the Court at Kshs 66, 300/= on 3rd June 2015  These are the costs together with accrued interest the applicant seeks payment of before the present suit which is on the same subject matter as the withdrawn suit can be proceeded with

3  The plaintiff filed a Notice of Preliminary Objection dated 17th May 2019 in regard of the applicant’s Notice of Motion stating the issue of costs wasresjudicata the same having been canvassed by the lower Court where the Court ruled no such costs were awarded to the defendant  Further the plaintiff filed a replying affidavit dated 24th September 2019 on 25th September 2019 effectively obliterating the preliminary objection  On 18th September 2019 the Court directed the parties to canvass the application by way of written submissions

4  The position taken by the plaintiff in the replying affidavit was that no costs were awarded to the defendant and there was no order to that effect  The plaintiff further contended the issue of costs had been dealt with during the hearing of Notice to Show Cause why execution should not issue and referred to rulings made by Hon  B Mararo, PM on 13th July 2016 and 3rd January 2017  The  plaintiff  argued that by the said  rulings, the learned Magistrates had stated  that he lacked  the jurisdiction  to deal with the issue of costs as the suit  related to  land and Magistrate had no jurisdiction to deal with land matters  The plaintiff further contended the defendant had the option of appealing the rulings by the Magistrate and since he never appealed the issue was Resjudicata

5  The parties filed written submissions to canvass the application  The 1st defendant/applicant filed his submissions on 24th September 2019 and the plaintiff on 9th October 2019  I have read the submissions and I have reviewed the authorities referred to in the respective submissions  The issue that is at the centre of this application is whether  the  1st  defendant  was granted  costs for the suit withdrawn by the plaintiff in the lower court, and if so, whether the present proceedings should be stayed until the plaintiff  settles those costs

6  There is no dispute that the plaintiff in the present suit filed Nakuru CMCC No  126 of 2014 where the 1st defendant in the present suit was the defendant  It is also not disputed that the plaintiff wholly withdrew the said suit as against defendant  Following  that withdrawal of the suit, the 1st defendant who had appeared and filed a defence in the suit in the magistrate’s court case  made a written request to have costs assessed in his favor pursuant  to Order 25 Rule 3 of the Civil Procedure Rules  vide  a letter dated 2nd March 2015  The request was acted upon and the costs were on 3rd June 2015 assessed at Kshs66,300/= and a certificate of costs issued  The plaintiff raised issues with the award of costs when the 1st defendant commenced execution proceedings for the costs which resulted in Hon  B Mararo, PM making the rulings referred to earlier  in this ruling  The record does not show that the certificate of costs issued on 3rd June 2015 was ever set aside

7  Order 25 Rule 3 of the Civil procedure Rules, 2010 provides as follows:-

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

8  Under order 25 Rule 1 a plaintiff can withdraw a suit at any time before it is set down for hearing  The provision is on the following terms:-

O 25 rule 1-“At any time  before the setting  down of the suit for hearing the plaintiff  may by notice  in writing, which  shall be served on all parties, wholly discontinue  his suit  against  any of the defendants  or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action

9  In the suit before the Magistrate’s Court the plaintiff exercised her right as provided under Order 25 Rule 1 of the Civil Procedure Rules to withdraw the suit wholly as against the defendant  Once a plaintiff  exercises the option to withdraw  a suit as provided  under  Order 25 Rule 1, the court  has to accept the withdrawal and cannot reject  the same  However there are consequences that flow from the exercise by a plaintiff of his right to withdraw or wholly discontinue a suit against a defendant who has appeared in the suit  Under Order  25 Rule 2 of the Civil Procedure Rules where a suit has been set down  for hearing, the plaintiff can only discontinue  the suit or withdraw any part of his claim  with the leave of the Court  and upon such  terms as to costs and/or filing of any  other  suit, as the Court  may  consider just

10 Where the suit is discontinued in its entirety under the provisions of Order 25 Rule  1 a defendant is entitled  to seek to be granted costs as provided under Order 25 Rule 3 of the Civil  Procedure Rules  The Court before which the wholly discontinued suit was lodged has no discretion not to award costs of the discontinued suit to the defendant  The wording of  Order 25 Rule 3 in regard to award of costs where a suit is wholly discontinued is in mandatory  terms thus:-

“…Upon request in writing by any defendant the registrar shall sign judgment for costs of a suit which has been wholly discontinued… ”

11  In the suit before the lower Court the plaintiff wholly discontinued her suit against the defendant and the defendant properly applied in writing under Order 25 Rule 3 to be awarded the costs of the suit  The Magistrate’s Court assessed the costs and issued a certificate of costs for Kshs66,300/= on 3rd June 2015  This was in accord with Order 25 Rule 3  I am satisfied the costs were properly awarded

12  The certificate of costs which was duly signed by the Magistrate was never set aside  Hon B  Mararo P M in the rulings he made in the execution proceedings did not set aside the certificate   of costs and there was no application for him to do so  The learned magistrate’s position was that since the Magistrate’s Court then had no jurisdiction to deal with land matters, the Court could equally not deal with any1 issue of costs arising from such a suit  With respect, it is my view that the learned magistrate misconstrued and misapprehended the purport of Order 25 Rules 1, 3 and 4  There is no denying that a defendant   in a suit does not have any say in regard to where a suit is filed  If a suit is filed in a court that turns out did not have any jurisdiction, that cannot be a ground for a defendant to be denied cost  if he appeared and defended the suit  Under section 27 (I) of the Civil Procedure Act, the fact that the Court, before which the suit was filed did not have jurisdiction cannot be a bar to an award of costs in the suit

13  In the present matter even if it was true the lower court lacked jurisdiction to deal with land matters, the fact is that the plaintiff had filed the suit and the defendant  appeared and filed a defence  Once the plaintiff elected to withdraw/discontinue the suit against the 1st defendant herein, the incidence of costs was inevitable and the same were properly assessed in favor of the defendant upon a written request  The certificate  of costs issued on 3rd June 2015 constituted a valid order for costs after  assessment  by the Court

14  The Court  under  Order  25 Rules 4 has the discretion to order  a stay  of a subsequent  suit brought  after the withdrawal  or discontinuance of a previous suit which was on the same  cause of action

15  Order 25 Rule 4 provides:-

“If any subsequent suit shall be brought before payment of the costs of a discontinued suit, upon the same, or substantially the same cause of action, the court may order a stay of such subsequent suit until such costs shall have been paid ”

16  I am satisfied the discontinued suit before the Magistrates Court related  to the same subject matter as in the present  suit being land parcel Nakuru/Lengenet/792/formerly (Morgan Farm plot No 45) which the plaintiff  claimed  ownership of as she  claims  in the present  suit

17  It was the plaintiff’s duty and obligation to ensure the magistrate’s court had jurisdiction to handle land matters when she filed the suit in the magistrates Court  The 1st defendant cannot share in the blame  Order 25 Rule 3 was intended to shield defendants in suits from being “tossed” from one court to another by a plaintiff who exercises their right under Order 25 Rule 1 to withdraw or discontinue a suit for any reason

18  The plaintiff in her submissions has argued that no order for   judgment for costs was made and hence no costs were properly awarded  I have dispelled this argument as there was a formal  request for costs in writing by the defendant which was duly  acted upon and a certificate of costs duly signed by the Magistrate issued on 3rd June 2015  Further the plaintiff has argued the instant suit was on a different cause of action founded on fraud and forgery  However the substantive claim is the ownership of the suit property which the plaintiff claims was fraudulently transferred by the defendants to their names  The subject  matter  of the suit before  the Magistrates  court was the same as in this court and in my view  the present suit is on the same and/or substantially  the same cause of action as in the previous suit  within  the meaning  of Order 25 Rule 4 of the Civil Procedure  Rules

19  I am in the premises persuaded that the Notice of Motion dated 19th March  2019 has merit  and that the 1st defendant is entitled to have the costs of the previous suit in the sum of  Kshs 71,425/= settled  before the present suit can be proceeded with  I accordingly order the present suit to be stayed until the 1st defendant’s costs of the said previous suit are paid

20  Orders accordingly

Ruling dated signed and delivered at Nakuru this 21st day of November 2019

J M MUTUNGI

JUDGE