Plister Obara Okumu v Kenya Electricity Transmission Company Limited [2019] KEELC 4174 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC CASE NO. 584  OF 2015

PLISTER OBARA OKUMU..................................................................................PLAINTIFF

VERSUS

KENYA ELECTRICITY TRANSMISSION COMPANY LIMITED...........DEFENDANT

RULING

1. This suit was commenced by Plister Obara Okumu, the Plaintiff, against Kenya Electricity Transmission Co. Ltd, the Defendant, through the plaint dated the 11th May 2012, seeking for permanent injunction in respect of Uholo/Madungu/1109, or in the alternative compensation for the house erected on the said land, plus costs and interest.

2. That the parties appear to have settled the main prayer through a consent on the payment of compensation. That what remains outstanding is the issue of costs. The Learned Counsel for the Defendant and Plaintiff filed their written submissions dated the 30th December 2018 on the issue of costs, and hence this ruling.

3. The Court has carefully considered the pleadings filed, record, written submissions, the decided cases cited therein and come to the following determinations;

a) That Section 27 of the Civil Procedure Act Chapter 21 of Laws of Kenya inter alia provides that “the costs of and incidental to all suits 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…………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.”

b) That though the Defendant did not file any defence to the Plaintiff’s claim, they have participated through Counsel in the various processes, including, hearing of the applications, and entering into consent orders for valuations. That the court through order (a) of the ruling of 31st October 2012, ordered the payment by the Defendant to the Plaintiff of Kshs. 1,800,000/=.

c) That the finding in (b) above shows the court that the Plaintiff is to an extent the successful party in these proceedings and in accordance with the proviso to Section 27 of the Civil Procedure Act, she is entitled to costs which follow the event.

d) That though the Defendant has opposed costs being awarded to the Plaintiff, there is no evidence that a reasonable offer had been made to the plaintiff before the filing of the suit, and that she declined. The Plaintiff is therefore entitled to some costs, though not all costs as the Defendant has settled out of Court.

e) That as the Defendant has shown good will through the negotiations that led to the valuation and settlement, the court is of the considered view that parties should share the costs. The defendant will therefore pay the Plaintiff half the costs to be agreed or taxed.

4. That flowing from the above findings, the court grants the Plaintiff half the costs of the suit and interests to be paid by the Defendant.

Orders accordingly.

S.M. KIBUNJA

ENVIRONMENT & LAND

JUDGE

DATED AND DELIVERED THIS 20TH DAY OF MARCH 2019

In the presence of:

Plaintiff       Absent

Defendant      Absent

Counsel    M/s Ayieta for Yogo for Plaintiff

S.M. KIBUNJA

ENVIRONMENT & LAND

JUDGE