REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)

MUKUA TUTUMA  …..………………....................…………..………..….PLAINTIFF

VERSUS

ALEX MUNENE TUTUMA …………..................………..……….1^ST DEFENDANT

RAPHAEL KIBIRU TUTUMA ……..................…………….…….2^ND DEFENDANT

RULING

The plaintiff had sued the two defendants for orders which would see the cancellation of the title registered in the name of the 2^nd defendant, so that the said title would then be sub-divided and then registered in equal share as between the plaintiff and the 2^nd defendant.  The property in issue in the suit is L.R. No. 209/8252 (Title No. IR 28156), which is situated along Lusingeti Road, off Likoni Road, Nairobi.

Simultaneously with the Plaint, was filed a Chamber Summons seeking interlocutory injunctive reliefs against the 2^nd defendant.

In his replying affidavit, the 1^st defendant asserted that as the plaintiff had made no allegations against him, and also that because the plaintiff had not sought any remedies against him, it must be deemed that the plaintiff had wrongly enjoined him to the suit.

When the plaintiff's application for an injunction came up for hearing of 3^rd April 2006, the plaintiff and the 2^nd defendant recorded a consent order in the following terms.

"1.   THAT the suit premises be and are hereby ordered to be subdivided and shared equally between the plaintiff and the 2^nd defendant.

2.         THAT the costs of the sub-division be shared equally between the plaintiff and the 2^nd defendant.

3.         THAT the sub-division be undertaken jointly, by surveyors who will be appointed jointly by the plaintiff and the 2^nd Defendant; the said surveyors will be appointed within 14 days from today.

4.         THAT the plaintiff and the 2^nd defendant will each appoint a surveyor.

5.         THAT the case be and is hereby Stood Over to 3/7/06, for mention to confirm compliance with the foregoing order.

6.         THAT the interim orders granted on 15.3.06 be and are hereby extended to 3.7.06.

7.         THAT the 2^nd defendant do pay costs to the plaintiff and the said costs are for both the application dated 8.3.06 as well as for the suit.  And the quantum of such costs to be agreed between the two parties, failing which the same shall be taxed."

Following the recording of the foregoing consent orders, the 1^st defendant submitted that the plaintiff ought to pay his costs, of the suit.  The reason for so saying was that he had been served with summons.  Thereafter, he had entered appearance, and then filed a Defence.  He had also attended court for the hearing of the plaintiff's application.

But as there was no prayer either in the Plaint or in the injunction application; and because the suit had been compromised as between the plaintiff and the 2^nd defendant, it is the submission of the 1^st defendant that he was entitled to an award of costs as against the plaintiff.  The 1^st defendant contends that he is entitled to such costs as there was nothing which remained to be determined by the court.

In response to the 1^st defendant's submission, the plaintiff contends that in the plaint, he had prayed for costs.  That issue, as far as he is concerned was still alive.

The plaintiff says that the 1^st defendant should pay the costs of the suit.  It is said that the 1^st defendant had secretly sold the suit property to the 2^nd defendant.  Therefore, the plaintiff feels that the issue of the alleged fraud committed by the 1^st defendant should first be investigated before the court could determine who should pay the costs.

But the 1^st defendant believes that following the consent orders as between the plaintiff and the 2^nd defendant, there was nothing left for determination.

In my considered view, the subject matter of the suit is the suit property, and the ownership thereof.  The said property was registered in the name of the 2^nd defendant only.  As the plaintiff was claiming one-half of the said property, and the 2^nd defendant has agreed to give it to him, I find that there is nothing left for determination.

By the plaintiff's own pleading, the 1^st defendant had sold his interest and rights to the suit premises prior to the transfer thereof to the plaintiff and the 1^st defendant.  Therefore, in order to get his share of the property, the plaintiff could only have the 2^nd defendant compelled to share it with him.

In my view, there was no role for the 1^st defendant in having the plaintiff get back that which he believed to be his share of the property.  It is for that reason that the plaintiff had no prayers in the plaint, which were directed at the 1^st defendant.  I therefore do not understand why the 1^st defendant was enjoined into a suit in which no remedy is sought against him.

Section 27 (1) of the Civil Procedure Act stipulates as follows;

"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."

In this case, the plaintiff never sought any substantive remedy against the 1^st defendant.  The plaintiff has now settled both his application and his claim for a share of the suit property.  In that respect, the plaintiff's costs are being settled by the 2^nd defendant.

In the circumstances, I hold that the plaintiff really had no reason to sue the 1^st defendant.  That implies that the 1^st defendant has succeeded in both the application and the suit, by default, as no remedies were sought or obtained against him.  Accordingly, in accordance with the proviso to Section 27 (1) I order that the costs of both the application and the suit should follow the event, as the plaintiff has not persuaded me that there was good reason for me to order otherwise.  Therefore, the plaintiff is ordered to pay to the 1^st defendant, the costs of both the application dated 8^th March 2006, as well as the costs of the suit.

Dated and Delivered at Nairobi this 27th  day of April 2006.

FRED A. OCHIENG

JUDGE