Macharia Gakaria & Associates Adv v Letangule & Company Advocates [2017] KEHC 3497 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL & ADMIRALTY DIVISON

CIVIL SUIT. NO.233 OF 2016

MACHARIA GAKARIA & ASSOCIATES ADV... PLAINTIFF

VERSUS

LETANGULE & COMPANY ADVOCATES.........DEFENDANT

RULING

1. The controversy that had been presented in these proceedings has all but been compromised.  What remains is the question of costs of the suit.

2. And costs follow the event.  To understand the event herein the background to this suit and compromise reached is necessary.

3. The firm of Macharia Gakaria & Associates Advocates (the Plaintiff) represented a Client by the name Guerassim Nikolov in the purchase of an apartment along Chaka Road being Flat B16 on LR No.1/360. Chase Bank Limited agreed to partly finance the purchase price and it appointed the firm of Letangula & Company Advocates (the Defendant) to represent it in the transaction.

4. There was an apparent delay in the completion of the transaction and on 20th June 2016 the Plaintiff brought a Notice of Motion seeking the following prayers:-

“2. A mandatory injunction directing and/or compelling the Defendant, its partners, servants and/or agents to :

a. Forthwith return to and/or refund to the Plaintiff Kshs.2,964,820/= less of any Stamp Duty paid to the Government of Kenya on transfer of Apartment B16 on L.R. No.1/360.

b. Forthwith return all documents forwarded by the Plaintiff or on its behalf to the Defendant in respect of Apartment B16 on L.R. No. 1/360 including but not limited to:

i. Original Lease in respect of Apartment B16 erected on L.R N.1/360.

ii. 3 duly executed Transfer of Lease Documents duly executed by the Vendor and Purchaser with coloured passport sized photographs affixed thereon.

iii. A copy of receipt for payment of Rates to the Nairobi City County Government.

iv. Duly executed Spousal Consent in duplicate.

v. A letter from the management company indicating settlement of all management costs.

vi. Utility bills for water and electricity.

vii. Copies of passports and PIN Certificates for both Vendor and Purchaser.

viii. Copy of Title Document in respect of L.R No.1. 360.

3. Cost of this application and of the suit”.

5. It is undisputed that during the pendency of the suit, the Plaintiff instructed the Defendant to complete the transaction and there is evidence that on 29th July 2016 the Defendant duly registered the transfer and forwarded all Documents to the Plaintiff.

6. By a letter dated 5th September 2016 the Plaintiff demanded a sum of Khs.500,000/= from the Defendant as costs.  The Defendant refuses to accede.

7. Parties herein chose to settle the matter without involving Court.  If there was an agreement on the issue of costs then the same is not presented to Court.  When the Plaintiff approached Court it was seeking return of the completion Documents and in effect cancellation of the deal.  Instead it chose to proceed with the completion of the transaction.  The Plaintiff’s Client would have had good reason for choosing that line of action.

8. What is not clear is what motivated the compromise.  Was it a concession by the Plaintiff that it could not succeed in the action as presented or was it reached to produce a win - win outcome to the parties?  An award of costs generally flows with the outcome of the litigation.  On this occasion it is not apparent who between the Parties was successful. In the circumstances there would be no reason for this Court to award either side with costs.

9. Each Party shall bear its own costs.

Dated, Signed and Delivered in Court at Nairobi this 13th day of July, 2017.

F. TUIYOTT

JUDGE

PRESENT;

Ndula for Defendant

N/A for Plaintiff

Carlos  -  Court Clerk