A. Introduction:
1. Vide A Notice of Withdrawal of suit dated 15 th July 2026, the Plaintiff's suit was marked as withdrawn on the 16.7.2026 by consent of the parties subject to determination of who to pay costs of the suit though the suit had been commenced by way of Plaint dated 4 th December 2022 but filed on the 9.12.2022.
B. Analysis & Determination:
2.The only issue for determination is who to bear costs of the suit.
3.Section 27 of the Civil Procedure Act, Cap 21 of the laws of Kenya provides as follows
1)“ Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, 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, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:”
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.
2.) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.”
3.Order 25 (1) of Civil Procedure Rules 2010 provides for withdrawal of the suit by the plaintiff as follows: -
" At any time before the setting down of the suit for hearing the plaintiff may by notice in writing, which shall be served on all parties, wholly discontinue his suit against all or any of the defendants or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action”.
4. It is trite that costs follow events though A court of law has the discretion to award costs based on the circumstances of each case as restated in the Case of Wanjiku & 8 others v. Del Monte Kenya Limited & another; National Environment Management Authority & 6 others (Interested Parties) (Environment & Land Petition E001 of 2024) [2024] KEELC 13818 (KLR) and Morgan Air Cargo Limited v. Evrest Enterprises Limited [2014] KEHC 8693 (KLR).
4. The matter ( issue of costs) arises from a dispute that was filed vide a plaint dated 4.12.2022at Mombasa environment and land court registry as no 143 of 2022 prior to its transfer for hearing and determination at Voi Environment and land court as No E005/2024. the matter was mentioned severally and parties took directions therein .Prior to transfer of this suit to Voi Environment and land Court for hearing and determination , The plaintiff had filed a similar suit in Mombasa Environment and land Court being No 125 of 2018 involving the same parties ,subject matter hence the ruling of Hon Justice Wabwoto herein dated 2.10.2023 that stayed hearing and determination of this suit( Mombasa elc 143/2022) pending hearing and determination of Mombasa elc 125/2018, then filed at Mombasa environment and land court registry, on account of subjudice principle.
5.Based on this background it is evident that the Defendant engaged the services of an Advocate to defend his interest in the matter from the time of inception of the suit. The Defendant incurred costs/expenses in defending the Application(s) filed on record that warrant an award of costs in favor of the Defendant.
6.This court therefore exercises its discretion in awarding costs to Defendant having been guided by the case of Rai & 3 others v. Rai & 4 others [2014] KESC 31 (KLR).
It is so ordered.
DATED, SIGNED AND DELIVERED ON 16.9.2026 AT VOI in the presence of:
Mr. Ochieng for Mr. Ombok for the Plaintiff (virtually)
Mr. Nyange for the Defendant
David -court assistant
By J A ORWA(JUDGE).
1. Vide A Notice of Withdrawal of suit dated 15 th July 2026, the Plaintiff's suit was marked as withdrawn on the 16.7.2026 by consent of the parties subject to determination of who to pay costs of the suit though the suit had been commenced by way of Plaint dated 4 th December 2022 but filed on the 9.12.2022.
B. Analysis & Determination:
2.The only issue for determination is who to bear costs of the suit.
3.Section 27 of the Civil Procedure Act, Cap 21 of the laws of Kenya provides as follows
1)“ Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, 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, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:”
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.
2.) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.”
3.Order 25 (1) of Civil Procedure Rules 2010 provides for withdrawal of the suit by the plaintiff as follows: -
" At any time before the setting down of the suit for hearing the plaintiff may by notice in writing, which shall be served on all parties, wholly discontinue his suit against all or any of the defendants or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action”.
4. It is trite that costs follow events though A court of law has the discretion to award costs based on the circumstances of each case as restated in the Case of Wanjiku & 8 others v. Del Monte Kenya Limited & another; National Environment Management Authority & 6 others (Interested Parties) (Environment & Land Petition E001 of 2024) [2024] KEELC 13818 (KLR) and Morgan Air Cargo Limited v. Evrest Enterprises Limited [2014] KEHC 8693 (KLR).
4. The matter ( issue of costs) arises from a dispute that was filed vide a plaint dated 4.12.2022at Mombasa environment and land court registry as no 143 of 2022 prior to its transfer for hearing and determination at Voi Environment and land court as No E005/2024. the matter was mentioned severally and parties took directions therein .Prior to transfer of this suit to Voi Environment and land Court for hearing and determination , The plaintiff had filed a similar suit in Mombasa Environment and land Court being No 125 of 2018 involving the same parties ,subject matter hence the ruling of Hon Justice Wabwoto herein dated 2.10.2023 that stayed hearing and determination of this suit( Mombasa elc 143/2022) pending hearing and determination of Mombasa elc 125/2018, then filed at Mombasa environment and land court registry, on account of subjudice principle.
5.Based on this background it is evident that the Defendant engaged the services of an Advocate to defend his interest in the matter from the time of inception of the suit. The Defendant incurred costs/expenses in defending the Application(s) filed on record that warrant an award of costs in favor of the Defendant.
6.This court therefore exercises its discretion in awarding costs to Defendant having been guided by the case of Rai & 3 others v. Rai & 4 others [2014] KESC 31 (KLR).
It is so ordered.
DATED, SIGNED AND DELIVERED ON 16.9.2026 AT VOI in the presence of:
Mr. Ochieng for Mr. Ombok for the Plaintiff (virtually)
Mr. Nyange for the Defendant
David -court assistant
By J A ORWA(JUDGE).