' This is a ruling on costs of the suit. The suit was compromised by a consent between the plaintiff and the 1 st defendant filed in court on 18-06-2025 and adopted by the court on 30-06-2025. Following the consent, the court entered judgment for the plaintiff against the 1 st defendant in following terms;
Judgement is entered for the plaintiff against the 1 st defendant for a sum of Kshs 591,164.90 all inclusive.
The decretal sum shall be liquidated in monthly installments of Kshs 30,000.00 payable on or before the 15 th of every month beginning June 2025 until payment in full.
In default of any installment on the due date, the plaintiff shall be at liberty to execute for the outstanding decretal sum with interest at 12 per cent per annum from the date of filing the suit.
Th plaintiff prayed that the suit be marked as settled with each party bearing their own costs in respect of the 2 nd , 3 rd and 4 th defendants. Mr. Kisilah for the 3 rd defendant was not opposed to the settlement of the case as proposed safe on the issue of costs and insisted that the defendants should be paid the costs of the suit. The counsel for the 2 nd defendant did not have anything to say in respect of costs. The 3 rd defendant told the court that they were not part of the negotiations and had prepared to defend the suit. Mr. Kisilah added that he was not even served with a copy of the consent and they were hearing about it for the first time in court. On its part, the plaintiff urged the court not to penalize it with costs as this was a public litigation suit.
I have considered the requests by the parties and perused the court file. I have noted that when the matter appeared before the Deputy Registrar on 10-09-2024, the 2 nd , 3 rd and 4 th defendants were not represented while the 1 st defendant had appointed advocates who appeared on her behalf. The 1 st defendant sought time to have an attempt on an out of court settlement and the court proceeded to grant the parties thirty days. The 2 nd and 3 rd defendants through their advocates appeared for the first time in the matter on 14-10-2024 on which date the court was not told of anything about settlement and the matter proceeded for pre-trial conference on 11-11-2024.
When the matter came for pre-trail conference on 11-11-2024, the plaintiff told the court of possible settlement as the 1 st defendant had written to them. The same happened on 21-01-2025 in presence of all the defendants except the 4 th defendant. On 4-03-2025, the plaintiff told the court that it was still engaged in negotiations with the 1 st defendant. On 7-04-2025 the plaintiff informed the court that there was no agreement and requested for a date for pre-trial conference which was fixed for 19-06-2025 on which date the court was informed of the consent filed the previous day.
It is clear from the above that the 2 nd and 3 rd defendants were not involved in the negotiations which had started before they even made appearances. They actually seemed to have been locked out of the information and progress of negotiations. The 2 nd and 3 rd defendants had in my view taken considerable steps in defending this suit as they had filed their defences and witness statements and attended the mentions and pre-trial conferences. The 3 rd defendant had actually filed his version of issues.
Considering that the 2 nd and 3 rd defendants had put efforts in preparing to defend the suit and were taken through the motions of pre-trials, I am inclined to exercise my discretion in their favour on costs. The reason given by the plaintiff that this is a public litigation suit and costs should not be awarded does not in my considered view hold water. The plaintiff is a statutory body whose mandate is clearly defined in the enabling Act. It has professionals who should be able to analyse situations of a case before it is filed and as it proceeds. It is not fair to use public interest tag to cause parties to incur expences in defending a suit and then deny them compensation for the same. The 4 th defendant did not enter appearance and does not deserve award of costs.
In the circumstances, I order that the suit against the 2 nd , 3 rd and 4 th defendants is marked as withdrawn. The plaintiff shall pay the 2 nd and 3 rd defendants costs of this suit. There shall be no orders as to costs in respect of the 4 th defendant.
Dated, signed and delivered at Nairobi this 19 th day of September 2025.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT.
Ruling delivered in presence of Miss Wairimu Kamau for the applicant and Miss Mwangi holding brief for Mr. Kisilah for the 3 rd defendant in absence of the 2 nd and 4 th defendants.
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Judgement is entered for the plaintiff against the 1 st defendant for a sum of Kshs 591,164.90 all inclusive.
The decretal sum shall be liquidated in monthly installments of Kshs 30,000.00 payable on or before the 15 th of every month beginning June 2025 until payment in full.
In default of any installment on the due date, the plaintiff shall be at liberty to execute for the outstanding decretal sum with interest at 12 per cent per annum from the date of filing the suit.
Th plaintiff prayed that the suit be marked as settled with each party bearing their own costs in respect of the 2 nd , 3 rd and 4 th defendants. Mr. Kisilah for the 3 rd defendant was not opposed to the settlement of the case as proposed safe on the issue of costs and insisted that the defendants should be paid the costs of the suit. The counsel for the 2 nd defendant did not have anything to say in respect of costs. The 3 rd defendant told the court that they were not part of the negotiations and had prepared to defend the suit. Mr. Kisilah added that he was not even served with a copy of the consent and they were hearing about it for the first time in court. On its part, the plaintiff urged the court not to penalize it with costs as this was a public litigation suit.
I have considered the requests by the parties and perused the court file. I have noted that when the matter appeared before the Deputy Registrar on 10-09-2024, the 2 nd , 3 rd and 4 th defendants were not represented while the 1 st defendant had appointed advocates who appeared on her behalf. The 1 st defendant sought time to have an attempt on an out of court settlement and the court proceeded to grant the parties thirty days. The 2 nd and 3 rd defendants through their advocates appeared for the first time in the matter on 14-10-2024 on which date the court was not told of anything about settlement and the matter proceeded for pre-trial conference on 11-11-2024.
When the matter came for pre-trail conference on 11-11-2024, the plaintiff told the court of possible settlement as the 1 st defendant had written to them. The same happened on 21-01-2025 in presence of all the defendants except the 4 th defendant. On 4-03-2025, the plaintiff told the court that it was still engaged in negotiations with the 1 st defendant. On 7-04-2025 the plaintiff informed the court that there was no agreement and requested for a date for pre-trial conference which was fixed for 19-06-2025 on which date the court was informed of the consent filed the previous day.
It is clear from the above that the 2 nd and 3 rd defendants were not involved in the negotiations which had started before they even made appearances. They actually seemed to have been locked out of the information and progress of negotiations. The 2 nd and 3 rd defendants had in my view taken considerable steps in defending this suit as they had filed their defences and witness statements and attended the mentions and pre-trial conferences. The 3 rd defendant had actually filed his version of issues.
Considering that the 2 nd and 3 rd defendants had put efforts in preparing to defend the suit and were taken through the motions of pre-trials, I am inclined to exercise my discretion in their favour on costs. The reason given by the plaintiff that this is a public litigation suit and costs should not be awarded does not in my considered view hold water. The plaintiff is a statutory body whose mandate is clearly defined in the enabling Act. It has professionals who should be able to analyse situations of a case before it is filed and as it proceeds. It is not fair to use public interest tag to cause parties to incur expences in defending a suit and then deny them compensation for the same. The 4 th defendant did not enter appearance and does not deserve award of costs.
In the circumstances, I order that the suit against the 2 nd , 3 rd and 4 th defendants is marked as withdrawn. The plaintiff shall pay the 2 nd and 3 rd defendants costs of this suit. There shall be no orders as to costs in respect of the 4 th defendant.
Dated, signed and delivered at Nairobi this 19 th day of September 2025.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT.
Ruling delivered in presence of Miss Wairimu Kamau for the applicant and Miss Mwangi holding brief for Mr. Kisilah for the 3 rd defendant in absence of the 2 nd and 4 th defendants.
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