REPUBLIC OF KENYA

IN THE ENVIRONMENTAL AND LAND COURT AT NAIROBI

ELC SUIT NO. 272 OF 2011

THOMAS GITAU NJOGU………………..…………..……1^ST PLAINTIFF

SAMUEL GATHECA MURIUKI……………..……………2^ND PLAINTIFF

JOHN TONY GICHAGA………………………...…………3^RD PLAINTIFF

HUMPREY NJOROGE KIBE……………………..……….4^TH PLAINTIFF

ZACCHAEUS KINYUA MURIITHI……………..……….5^TH PLAINTIFF

VERSUS

PATRICK WARUINGE MUHINDI………….………... 1^ST DEFENDANT

CITY COUNCIL OF NAIROBI………………….……..2^ND DEFENDANT

                 NATIONAL ENVIRONMENTAL

MANAGEMENT AUTHORITY………….………………3^RD DEFENDANT

RULING

The parties herein entered into consent on 8^th November 2011 that was adopted as an order of the court, and that essentially settled the dispute in the suit herein save for the issue of costs. The parties agreed in the said consent to file submissions on the issue of costs that would form the basis of the court’s decision on the award of costs.  The Plaintiffs’ counsel filed submissions dated  23^rd March 2012 wherein she gave a background to the suit herein and explained that the Plaintiffs and the 1^st Defendant are property owners at the area popularly called Mururui in Nairobi. 

It was submitted that the leases in the area provide for controlled development by limiting the construction of a single dwelling house and that it is for this reason that the Plaintiffs purchased and developed their respective parcels of land.  However, that in June 2011, the Plaintiffs noticed that the 1^st Defendant was constructing a multi dwelling house on his parcel of land, namely Nairobi Block 139/171 that borders their respective properties. Further, that the Plaintiffs tried to prevail on the 1^st Defendant to cease construction of the same and also notified the 2^nd and 3^rd Defendant of their concerns, and were compelled to file the action herein when the said concerns were not responded to.

The Plaintiffs’ counsel submitted that costs shall follow the event and relied on the definition of event in as provided in the text Judicial Hints on Civil Procedure, 2^nd Edition  by Justice Kuloba (as he then was), to mean the result of all the proceedings incidental to the litigation.  Further, that the Plaintiffs herein succeeded in its claim against the Defendants as claimed in the Plaint in the said consent order. It is also urged that the Plaintiffs’ rights had been infringed by the Defendants herein and they were entitled to enforce their rights as they did.  The counsel also submitted that the Plaintiffs are not guilty of any misconduct, and hence are entitled to costs of the suit as a matter of course.

The 1^st Defendant’s counsel filed submissions dated 30^th May 2012 and argued that the 1^st Defendant should not be condemned to pay any costs in this matter for the  reason that the Plaintiffs did not give notice  of intention to sue .  The counsel relied on Rule 53 of the Advocates Remuneration Order and the decision in the case of Wambugu Vs. Public Service Commission (1972) EA 296 in this respect.   It was further submitted that when the 1^st Defendant was served with the suit papers, he immediately stopped construction, and subsequently agreed to record a consent that he was to adhere with the building requirements in the area as demanded by the Plaintiffs.  Further that the 1^st Defendant did not file any papers to contest the Plaintiffs suit either by Grounds of Objection or Replying Affidavit.

The 1^st Defendant also submits that if there are any costs to be paid to the 2^nd and 3^rd Defendants the same should be paid by the Plaintiff, as the two defendants were not necessary parties to this suit. It was submitted in this respect that the Plaintiffs could have got the injunctive orders sought against the 1^st Defendant, and should have joined the 2^nd and 3^rd Defendants only if the 1^st Defendant disclosed in his defence that he had obtained the consents from the 2^nd and 3^rd Defendants.

The 2^nd Defendant’s counsel’s submissions were dated 23^rd March 2012 wherein he argued that no fault can be found on the part of the City Council of Nairobi.  Further, that there is no dispute that it has passed Building Regulations which the 1^st Defendant has herein admitted to have breached.  The counsel argued that the 2^nd Defendant cannot be blamed for the unlawful acts of the 1^st Defendant of which it had no notice, and that it would only be blamed if even after notice it took no action. However, that in this case after being notified of the breach, the 2^nd Defendant promptly moved to investigate and issue an Enforcement Notice as it is mandated to do under Section 38 of the Physical Planning Act.

The counsel relied on section 27 of the Civil Procedure Act to submit that the generally accepted principle is that costs follow the event, and that this principle still applies even though the determination of a case was consensual. He relied on the decisions in Armadilo Equity Limited vs. Institute of Correspondence Studies (K) Limited (2006) eKLR and Col. Josiah Landy Mrashui vs. Clement Mulemwa Rugendo & others (2009) eKLR  for this position.

The counsel further urged the court to examine the consent order to  determine the party who is at fault, and submitted in this respect that the 1^st Defendant has unequivocally admitted wrongdoing in the said consent order. He also submitted that the events of the suit herein lead to the conclusion that the 1^st Defendant is the party at fault, and should therefore bear the costs of the proceedings with interests until payment in full to the other parties.

Lastly, the 3^rd Defendant’s counsel in submissions dated 18^th June 2012 supported the 2^nd Defendant’s written submissions and argued that costs follows the event. He argued that the 1^st Defendant proceeded to start a project illegally without an Environmental Impact Assessment (EIA) License as required by the Environmental Management and Coordination Act as read together with the 2^nd schedule thereof.

Further, that it was not in doubt that the 1^st Defendant is the party at fault and that he has occasioned the other parties to incur costs in the suit. It was urged that the 1^st Defendant should therefore meet the costs of the suit as costs follow the event.  The counsel urged the court to find that the 3^rd Defendant is entitled to costs, throw away or otherwise, and be allowed to assess the same for taxation before the taxing master of this court.

I have carefully considered the written submissions and authorities filed by the Plaintiffs and the 1st and 2^nd Defendants. The issue before this court is which party or parties should pay the costs of this suit in the circumstances of this suit where the dispute has been  settled by consent of the parties. Costs are in the discretion of the court, save that they will normally follow the event, unless the court shall for good reason otherwise order.  I need in this respect to clarify that the applicable law with respect to payment of costs of a suit is section 27 (1) of the Civil Procedure Act (Cap. 21) which states 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.”

The 1^st Defendant argued that section 53 of the Advocates Remuneration Order also applies in determining who should pay the costs of the suit, and  that as he was not served with notice he should not pay the Plaintiff’s costs. Section 53 of the Advocates Remuneration Order provides as follows:

“If the plaintiff in any action has not given the defendant notice of his intention to sue, and the defendant pays the amount claimed or found due at or before the first hearing, no advocate’s costs shall be allowed except on a special order of the judge or magistrate.”

This section is specific that it only applies to an advocate’s costs, and section 2 of the Advocates Remuneration Order is specific on its application  in this regard as follows:

“This Order shall apply to the remuneration of an advocate of the High Court by his client in contentious and non-contentious matters, the taxation thereof and the taxation of costs as between party and party in contentious matters in the High Court, in subordinate courts (other than Muslim courts), in a Tribunal appointed under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act and in a Tribunal established under the Rent Restriction Act.”

The Order is therefore not applicable at this stage of the proceedings when the court is awarding costs of a suit, and only becomes relevant thereafter in the taxation of the said costs. In any event the court is also given discretion under section 53 to order payment of an advocate’s costs in the event that notice of intention to sue was not given.

I also need to clarify in this respect that it was stated in the decision of Wambugu Vs. Public Service Commission (1972) EA 296 that the failure to serve notice of intention to sue is but one of the considerations that the court takes into account in the exercise of its discretion under section 27 of the Civil Procedure Act. In this particular suit however the Plaintiff argued that he did give notice to the 1^st Defendant and the said notice dated 2^nd June 2011 addressed to all the Defendants was produced as part of the Plaintiffs documents and has acknowledgment of receipt by the 2^nd and 3^rd Defendants.

The question that remains to be answered by the court is that of who the successful party is when parties settle a dispute by consent. I agree in this regard  with the Counsel for the Plaintiffs,  2^nd and 3^rd Defendants that the interpretation of the proviso in section 27 (1) of the Civil Procedure Act is that the event referred to is the result of the proceedings, and it is the successful party in this result who is normally awarded costs of the suit. The result in this suit is that there has been a settlement of the dispute between the parties following the consent entered into by the parties on 8^th November 2011, save for the issue of costs. 

It has been argued by the Plaintiffs, 2^nd and 3^rd Defendants in this respect that even in such a consensual settlement, the party whose wrongful acts led to the dispute and eventually to the suit herein should be made to bear the costs of the other innocent parties. It is however my opinion the only material event under section 27 of the Civil Procedure Act is the success or otherwise of a suit. Fault is only material when it comes to exercise of the courts discretion whether or not to award costs due to a successful party on account of their conduct. 

It is also my view that it is not always given that in a consent there will be a successful and unsuccessful party. To determine the successful party in a consent order the court will need to examine the content and nature of the said consent in relation to the pleadings by the parties. The consent order recorded and adopted herein on 8^th December 2012 in this regard stated as follows:

1. By consent the 1^st Defendant will stop any further constructions and will bring down the already constructed structures on the suit property known as LR. NAIROBI BLOCK 139/171.
2. The 1^st Defendant will abide with the City Council of Nairobi and NEMA building regulations of the area in which the said property is located as stipulated in the lease.
3. The parties to take a date for the court to hear submissions on costs and determine the award of the costs.

The Plaintiffs in their Plaint date 9^th June 2011 had sought a permanent injunction restraining the 1^st Defendant from continuing with construction on the said property, and a mandatory injunction compelling him to demolish the structures already constructed. In addition they also sought an order that any approvals and/or consents given by the 2^nd and 3^rd Defendants to undertake the said construction be declared illegal and a nullity.

The 3^rd Defendant filed an undated Defence on 25^th July 2011 in which it stated that they had not issued any approvals to the 1^st Defendant and  but asked that the prayers in the Plaint be dismissed against it, except the prayer for a permanent injunction against the 1^st Defendant. The 2^nd Defendants had not filed a Defence by the time the consent was entered into, and did not attach any evidence of the enforcement notice it was claimed it issued against the 1^st Defendant.

In the circumstances, it would appear that the Plaintiffs largely succeeded in securing the orders sought in their Plaint in the consent orders that were adopted on 8^th December 2012.  The 3^rd Defendant also partially succeeded in light of the pleadings and prayers in its Defence. The 2^nd Defendant cannot however be regarded as a successful party as they had made no claim against the 1^st Defendant. The fault or otherwise of the 1^st Defendant cannot on its own therefore entitle the 2^nd Defendant to any costs.

 I therefore accordingly order that the 1^st Defendant shall meet the Plaintiffs’ and 3^rd Defendant’s costs of this suit, and that the 2^nd Defendant shall bear their own costs of the suit. 

Orders accordingly.

Dated, signed and delivered in open court at Nairobi this 17^thday of October, 2013.

 P. NYAMWEYA

JUDGE