Roots Ltd v Kenya Power & Lighting Co. Ltd [2013] KEHC 6213 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION

MISC APPLICATION  NO. 311 OF 2011

THE ROOTS LTD..…………………………………………….…...PLAINTIFF

VERSUS

KENYA POWER & LIGHTING CO. LTD....……................….…DEFENDANT

R U L I N G

1.     On 22nd January 2013 the court was informed by the learned advocates for the parties that the substantive issue in this matter (contempt of court) was settled by the parties and that the only issue  outstanding was costs of the proceedings.  The terms of settlement were not disclosed to the court.  On 15th February 2013 an order was entered in terms of a consent letter dated 4th and filed on 11th February 2013.  That consent was -

“1.     That this matter be and is hereby marked as settled between the parties.

2.       That the issue of who bears the costs be determined by the Court.”

2.     Without disclosure to court of the terms of settlement, and short of deciding the merits of the parties’ relative cases in the substantive dispute, how else could the court make an informed decision on exercise of its discretion under section 27(1)of the Civil Procedure Act, Cap 21?  What would be the event envisaged in the proviso to that subsection?

3.     The court cannot do the impossible.  The only sensible order to make in the circumstances is that each party bears its own costs of the proceedings.  It is so ordered.

DATED AND SIGNED AT NAIROBI THIS 2ND DAY OF JULY 2013

H. P. G. WAWERU

JUDGE

DELIVERED AT NAIROBI THIS  5TH DAY OF JULY 2013