1.By a consent recorded by the parties on 01.03.2022 the Plaintiffs withdrew the suit against the 1st – 7th Defendants. As the parties did not agree on the issue of costs, they agreed to have the award of costs determined by the court. The parties further agreed to canvass the issue through written submissions. The material on record shows that the Plaintiffs filed their submissions on 14.03.2022 whereas the 1st – 7th Defendants filed theirs on 22.04.2022. The Attorney General did not file any submissions seeking costs of the suit.
2.The Plaintiffs submitted that whereas the award of costs was at the discretion of the trial court, the court should depart from the general rule stipulated in the proviso to Section 27 of the Civil Procedure Act (Cap.21) and direct that each party to the suit should bear his own costs since the parties were family members and the circumstances which led to the withdrawal of the suit where beyond the control of the Plaintiffs. The Plaintiffs relied upon the case of Cecilia Karuru Ngayu –vs- Barclays Bank of Kenya & Another  eKLR in support of their submissions.
3.The 1st – 7th Defendants, on the other hand, relied upon Section 27 of the Civil Procedure Act and urged the court to follow the general principles and award the Defendants costs of the withdrawn suit. The Defendants also relied upon the case of Cecilia Karuru Ngayu –vs- Barclays Bank of Kenya & Another (supra). The court was urged to examine the conduct of the Plaintiffs in filing the suit against their ailing mother and their own siblings and condemn them to pay costs of the suit. The Defendants also cited the cases of John Ndungu Muriithi –vs- Gideon Karegwa Ndungu & 5 Others  eKLR and Paul Kirima –vs- Delfina Kathiri  eKLR support of their submissions.
4.The parties are in agreement that the applicable statutory provisions on the award of costs are to be found in Section 27(1) of the Civil Procedure Act which stipulates as follows:
5.The parties are also in agreement on the factors to be considered by the court in making an award on costs. Those factors were considered in the case of Cecilia Karuru Ngayu –vs- Barclays Bank of Kenya & Another (supra) which was cited by counsels on both sides. In the said case the High Court summarized the factors as follows:
6.What the parties were not agreeing upon was the application of those factors to the circumstances of this suit. The court has taken into account of the factors which led to the filing of the suit and the circumstances which led to its termination. The parties are likely to pursue resolution of the property dispute before the Succession Court under the Law of Succession Act (Cap.160). The court has noted that the Plaintiffs and the 1st – 7th Defendants are relatives and members of the same family. There is need to promote healing and reconciliation amongst members of the family. The court is thus inclined to agree with the Plaintiffs’ submission that this is a fit case for the court to depart from the general principle that costs shall follow the event.
7.Accordingly, the court is persuaded that the appropriate order to make in the circumstances of this case is for each party to bear his own costs. It is hereby ordered that each party shall bear his own costs of the withdrawn suit.It is so ordered.