Kimathi & 2 others v General & 3 others [2022] KEELC 2613 (KLR)

Kimathi & 2 others v General & 3 others (Environment & Land Case E006 of 2021) [2022] KEELC 2613 (KLR) (20 July 2022) (Ruling)

Neutral citation: [2022] KEELC 2613 (KLR)

Republic of Kenya

In the Environment and Land Court at Meru

Environment & Land Case E006 of 2021

C K Nzili, J

July 20, 2022

Between

Francis Kimathi

1st Plaintiff

Jacob Nturibi

2nd Plaintiff

Peter Nturibi

3rd Plaintiff

and

Attorney General

1st Defendant

Land Registrar Meru Central

2nd Defendant

Rael Nyawira Nyamu

3rd Defendant

Latif M’Ikiara

4th Defendant

Ruling

1. By a notice of motion dated March 25, 2022 the plaintiffs sought to withdraw the suit with effect from March 28, 2022. When the matter came up on May 16, 2022, counsel for the 3rd defendant told the court that his client had no objection to the withdrawal of the suit subject to the payment of costs.

2. Miss Gikundi counsel urged the court to find that the plaintiffs were initially acting in person and should not be made to suffer due to ignorance of the law. The court proceeded to allow the withdrawal and deferred a ruling on costs.

3. The general principle under Section 27 of the Civil Procedure Act is that costs follow the event.

4. In this matter the 3rd defendant submits they have incurred costs by filing the defence. By an application dated September 26, 2021, the 3rd defendant sought to be joined as an interested party in this suit. The court proceeded to allow the application vide a ruling dated January 26, 2022 following which the plaint was amended. The interested party to file a response within 21 days. The amended plaint was filed on February 16, 2022 and summons issued on March 4, 2022.

5. Prior to these amendments the 3rd defendant had with leave of court filed a defence dated December 20, 2021, whereas the 1st and 2nd defendant had only filed a preliminary objection which the court determined.

6. In Republic vs Rosemary Wairimu Munene (exparte applicant) Ihururu Dairy Farmers Cooperative Society Ltd (2014) eKLR, the court held that the principle that costs follow the event is not to be used to penalize the losing party but rather to compensate a successful party for the trouble taken in prosecuting or defending the suit.

7. In Jasbir Singh Rai & 3 others vs Tarlochan Rai & 4 others (2014) eKLR, the Supreme Court of Kenya held good reasons for departing from the general rule would include public interest and the circumstances of the case.

8. In Cecilia Karuru Nganga vs Barclays Bank & another (2016) eKLR, the court set out the good reasons to include the conduct of the parties, the subject of litigation, events leading to the termination, manner of termination, relationship between the parties and the need to promote reconciliation.

9. Applying the above principles, the reason(s) given for the withdrawal of the suit is because the parties were acting in person and filed the suit out of ignorance of the law.

10. As indicated above it is the 3rd defendant and or the interested party who sought to be enjoined as a party to this suit.

11. Soon thereafter joining the suit, the plaintiffs sought to withdraw the suit which the 3rd defendant/interested party has not objected to.

12. Similarly, no summons to enter appearance have been served upon the 3rd defendant/interested party by the plaintiffs.

13. Given the circumstances of this matter, I find that there are good reasons to depart from the general rule since none of the parties in this suit has been successful for the suit has only been withdrawn. Consequently, each party shall bear their own costs.Orders accordingly.

DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT THIS 20TH DAY OF JULY, 2022In presence of:Gikundi for plaintiffKieti for 1st and 2nd respondentNdubi for 3rd interested partyHON. C.K. NZILIELC JUDGE