Oracle Productions Limited v Decapture Limited & 3 others [2022] KEHC 16146 (KLR)

Oracle Productions Limited v Decapture Limited & 3 others (Commercial Civil Suit 567 of 2011) [2022] KEHC 16146 (KLR) (Commercial and Tax) (9 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16146 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Commercial Civil Suit 567 of 2011

A Mabeya, J

December 9, 2022

Between

Oracle Productions Limited

Plaintiff

and

Decapture Limited

1st Defendant

CFC Stanbic Bank Limited

2nd Defendant

Radio Africa Limited t/a Kiss TV

3rd Defendant

Kenya Broadcasting Corporation

4th Defendant

Ruling

1. The plaintiff withdrew this suit and through consents with the 2nd, 3rd and 4th defendant, the same was withdrawn with no order as to costs.

2. However, the 1st defendant did not reach a consent with the plaintiff on the issue of costs. It therefore urged that the costs of the suit be awarded to it.

3. The record shows that the plaintiff proposed an amount to the 1st defendant to settle the costs, which amount was not accepted by the 1st defendant.

4. Both parties filed submissions on the issue of costs which the court has considered.

5. In Pacis Insurance Company Ltd v Francis Njeru Njoka [2018] eKLR, it was held: -“A party having been caused by the other to participate in a suit, is entitled to costs incurred in the event the party instituting the suit decides to withdraw it unless parties agree otherwise or court on exercising its discretion decide otherwise after giving the parties opportunity to submit on costs.In the instant case, the suit was withdrawn after the hearing date was set. Defendant had engaged an advocate to defend the suit. Defendant is therefore expected to have incurred expenses and is entitled to costs expended.From the foregoing, I do order plaintiff to pay the defendant costs of this suit to be taxed by the Deputy Registrar.”

6. I concur with the finding above. In this case, the plaintiff brought the 1st defendant to court which caused it to instruct an advocate and incur costs in defending itself.

7. Since costs follow the event, I order the plaintiff to pay costs to the 1st defendant. The parties have not agreed on the costs to be paid.

8. I therefore direct the 1st defendant to file a bill of costs for taxation. However, in such taxation, the taxing master shall take into consideration the fact that notwithstanding the matter being in court for over 10 years, it never proceeded to trial.It is so ordered.

DATE AND DELIVERED AT NAIROBI THIS 9TH DAY OF DECEMBER, 2022. A MABEYA, FCIArbJUDGE