Mbugua V Olang & Another (No 2) EKLR
|Civil Case 3338 of 1979(2)||28 Dec 1979|
Alan Robin Winston Hancox
High Court at Nairobi (Milimani Law Courts)
Mbugua v Olang & another (No 2)
Mbugua v Olang & another (No 2) eKLR
Mbugua v Olang & another (No 2)
High Court, at Nairobi
December 28, 1979
Civil Case No 3338 of 1979
Civil Practice and Procedure – costs – discretion of court to award costs – defendant successful in his application to be struck off the suit – whether such party entitled to his costs at that stage – plaintiff successful in resisting an application for discharge of an interlocutory injunction - whether a plaintiff a “successful” party entitled to costs at that stage.
Following a Chamber Summons application made by the defendant and a former second defendant, the latter defendant succeeded in his prayer to be struck off as a party to this suit and an ex parte temporary injunction was ordered to continue against the defendant until the result of the trial.
The second defendant sought to be awarded his costs.
The plaintiff, on his part, argued that having been successful in resisting the application to discharge the temporary ex parte injunction, he was entitled to his costs at that interlocutory stage as well and further, that he was not liable to pay the second defendant’s costs since in the circumstances, it had been reasonable to join that defendant in the suit.
1. Regarding the order made in the plaintiff’s favour to continue the ex parte injunction against the remaining defendant, it could not yet be said that the plaintiff had succeeded against that defendant since the purpose of a temporary injunction is to preserve the status quo until the main issues in the case have been properly heard.
2. Since at this stage nothing had been done or said to alter the status quo and to finally determine the issue of the plaintiff’s position as a Vicar of a church parish, this Court would not at this stage give costs to the plaintiff against the defendant on that matter.
3. A successful plaintiff may still have to pay all the costs of an action. In order to justify an order refusing a defendant his costs, he must be shown to have been guilty of conduct which induced the plaintiff to bring the action, and without which it would probably not have been brought.
4. If the plaintiff succeeds in this case against the defendant, he will have to establish that the first defendant was guilty of some misconduct which led the plaintiff to join the Synod.
5. It would not be right to keep the second defendant out of its costs on the ground that, when the case is decided, it would be more just to the plaintiff (if successful) at that stage to give a Sanderson or Bullock order. There was no ground for depriving the second defendant of its costs at this stage.
1. Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd EA 289
2. Preston v Luck (1884) 27 Ch D 497
3. Mohamed and Another v Haidara  EA 166
4. Dicks v Yates (1881) 18 Ch D 76; 50 LJ Ch 809; 44 LT 660, CA
5. Ritter and Wife v Godfrey  2 KB 47; [1918 – 19] All ER 714; 89 LJKB 467; 122 LT 396
6. Campbell (Donald) & Co Ltd v Pollack  AC 732;  All ER Rep 1, HL
7. Bullock v London General Omnibus Co  1 KB 264; [1904 – 07] All ER 44; 76 LJKB 127; 95 LT 905
8. Sanderson v Blyth Theatre Co  2 KB 533
9. Dobie (DT) & Co (U) Ltd v United India Fire & General Insurance Co Ltd  EA 16
10. Mayer v Harte  2 All ER 840;  1 WLR 770, CA
11. Salsbury v Woodland  3 All ER 863, CA
12. Kierson v Joseph L Thompson and Sons Ltd  1 KB 587
Jacob, I H et al (Eds) (1959) The Annual Practice London: Sweet & Maxwell
1. Civil Procedure Act (cap 21) section 27(1)
2. Civil Procedure Rules (cap 21 Sub Leg) order I rule 7
Mr Sampson for the Plaintiff
Mr Le Pelley for the Defendant