RULING ON COSTS
1. The matter before the Court concerns the issue of costs following the withdrawal of the suit by the plaintiff. The plaint, dated 15th May 2023, sought a mandatory injunction compelling the 5th defendant Bank, to furnish specific documents as listed in the plaint. Before the suit could proceed to hearing, the plaintiff sought to withdraw the suit, citing that it had been overtaken by events upon the Bank eventually furnishing the documents in question.
2. The plaintiff contends that the withdrawal should be without an order for costs. It is his position that he did not lose the claim on the merits, as the cause of action became moot once the 5th defendant complied with the request for documents. He argues that it is the defendants’ initial failure to furnish the documents that necessitated the suit, and that his conduct in discontinuing the case once the documents were supplied should be commended rather than penalized.
3. The 2nd and 5th defendants oppose the prayer for withdrawal without costs. The 2nd defendant submits that it entered appearance and filed a statement of defence and is thus entitled to costs occasioned by defending a suit that has now been withdrawn. The 5th defendant similarly insists on an award of costs, noting that no adverse finding has been made against it. It maintains that the plaintiff should have pursued alternative avenues for resolving the issue, rather than rushing to court. The Bank therefore argues that the costs of the litigation ought to follow the event, and that the plaintiff must bear the consequences of filing suit prematurely.
4. The 1st defendant, like all the defendants, while not opposed to the withdrawal, stated through its Counsel, Mr. Owade that they would not be insisting on costs.
5. I have considered the submissions by Learned Counsels. The general rule under Section 27(1) of the Civil Procedure Act is that costs follow the event unless the Court for good reason directs otherwise. The rationale for awarding costs is to indemnify a successful party for the expenses incurred in defending or prosecuting a claim. However, the Court retains discretion to depart from this general rule depending on the circumstances of each case.
6. In the present case, it is not in dispute that the plaintiff initiated the suit due to the 5th defendant’s initial failure to provide documents that were necessary to the plaintiff. It is also undisputed that once the documents were supplied, the plaintiff promptly withdrew the suit without pursuing it further. The plaintiff did not obtain any formal relief from the Court but argues that the suit nonetheless achieved its purpose and was thereby rendered moot.
7. While the plaintiff’s assertion that the claim became unnecessary due to subsequent compliance is noted, the defendants were nonetheless put to the trouble and expense of preparing their defences and participating in the proceedings. The 2nd defendant filed a statement of defense questioning the decision to enjoin him to the proceedings. I agree looking at the pleadings, that it may not have been necessary to drag the other parties into a suit where the remedy sought was against a corporate person, and this would have saved time and resources.
8. The 5th defendant Bank against whom the principal relief was sought, had to equally engage counsel and respond. That said, I do consider that the plaintiff discontinued the suit promptly after obtaining the documents, without further taxing the time and resources of the Court and the parties. This is commendable but still does not alleviate the need to reimburse the defendants for their time and effort considering that the suit may not have been avoided in the first place.
Disposition
9. In the result, I make the following orders on costs:
a) The 2nd and 5th defendants shall have their costs of the suit up to the date of withdrawal, to be borne by the plaintiff.
b) For the avoidance of doubt, the award of costs does not extend to the 1st defendants who confirmed that they would not be insisting on costs, the 3rd defendants who have not participated in the proceedings and the 4th defendant who was struck out of these proceedings.
It is so ordered.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 28th DAY OF JULY 2025.
F. MUGAMBI
JUDGE
1. The matter before the Court concerns the issue of costs following the withdrawal of the suit by the plaintiff. The plaint, dated 15th May 2023, sought a mandatory injunction compelling the 5th defendant Bank, to furnish specific documents as listed in the plaint. Before the suit could proceed to hearing, the plaintiff sought to withdraw the suit, citing that it had been overtaken by events upon the Bank eventually furnishing the documents in question.
2. The plaintiff contends that the withdrawal should be without an order for costs. It is his position that he did not lose the claim on the merits, as the cause of action became moot once the 5th defendant complied with the request for documents. He argues that it is the defendants’ initial failure to furnish the documents that necessitated the suit, and that his conduct in discontinuing the case once the documents were supplied should be commended rather than penalized.
3. The 2nd and 5th defendants oppose the prayer for withdrawal without costs. The 2nd defendant submits that it entered appearance and filed a statement of defence and is thus entitled to costs occasioned by defending a suit that has now been withdrawn. The 5th defendant similarly insists on an award of costs, noting that no adverse finding has been made against it. It maintains that the plaintiff should have pursued alternative avenues for resolving the issue, rather than rushing to court. The Bank therefore argues that the costs of the litigation ought to follow the event, and that the plaintiff must bear the consequences of filing suit prematurely.
4. The 1st defendant, like all the defendants, while not opposed to the withdrawal, stated through its Counsel, Mr. Owade that they would not be insisting on costs.
5. I have considered the submissions by Learned Counsels. The general rule under Section 27(1) of the Civil Procedure Act is that costs follow the event unless the Court for good reason directs otherwise. The rationale for awarding costs is to indemnify a successful party for the expenses incurred in defending or prosecuting a claim. However, the Court retains discretion to depart from this general rule depending on the circumstances of each case.
6. In the present case, it is not in dispute that the plaintiff initiated the suit due to the 5th defendant’s initial failure to provide documents that were necessary to the plaintiff. It is also undisputed that once the documents were supplied, the plaintiff promptly withdrew the suit without pursuing it further. The plaintiff did not obtain any formal relief from the Court but argues that the suit nonetheless achieved its purpose and was thereby rendered moot.
7. While the plaintiff’s assertion that the claim became unnecessary due to subsequent compliance is noted, the defendants were nonetheless put to the trouble and expense of preparing their defences and participating in the proceedings. The 2nd defendant filed a statement of defense questioning the decision to enjoin him to the proceedings. I agree looking at the pleadings, that it may not have been necessary to drag the other parties into a suit where the remedy sought was against a corporate person, and this would have saved time and resources.
8. The 5th defendant Bank against whom the principal relief was sought, had to equally engage counsel and respond. That said, I do consider that the plaintiff discontinued the suit promptly after obtaining the documents, without further taxing the time and resources of the Court and the parties. This is commendable but still does not alleviate the need to reimburse the defendants for their time and effort considering that the suit may not have been avoided in the first place.
Disposition
9. In the result, I make the following orders on costs:
a) The 2nd and 5th defendants shall have their costs of the suit up to the date of withdrawal, to be borne by the plaintiff.
b) For the avoidance of doubt, the award of costs does not extend to the 1st defendants who confirmed that they would not be insisting on costs, the 3rd defendants who have not participated in the proceedings and the 4th defendant who was struck out of these proceedings.
It is so ordered.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 28th DAY OF JULY 2025.
F. MUGAMBI
JUDGE