Canyon Properties Limited & 3 others v Eliud Kipchirchir Bett & 1 other
The bottom line
#Kenya's Court of Appeal ruled that when a plaintiff withdraws a lawsuit, the judge must consider the defensive work the defendants did before denying them legal costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial judge exercised his discretion judicially in declining to award costs upon withdrawal of the suit
He did not: although the main suit had not been set down for hearing, the judge failed to consider the appearances, defences, preliminary objections and contested applications the appellants had prosecuted, all of which were relevant to the costs discretion.
The Court found that the parties fell within the third scenario under Order 25 - withdrawal only upon terms as are just. Steps taken by the appellants to defend the suit could not be ignored merely because the main suit was not set down for hearing. Any costs awarded would only cover work done up to the point of withdrawal, which the judge ought to have considered but did not, rendering the exercise of discretion flawed.
The right of a plaintiff to withdraw or discontinue a suit
The right to withdraw proceedings cannot be questioned in principle, but it is always subject to the court's power to make an order as to costs.
Relying on Nigerian and Kenyan Supreme Court authority, the Court affirmed that withdrawal is a right exercisable in various circumstances, but the court retains jurisdiction over costs, as recognised in the Salat decision and Order 25 of the Civil Procedure Rules.
The three scenarios for discontinuance under Order 25 of the Civil Procedure Rules
Before setting down for hearing, a plaintiff may withdraw by notice as of right; after setting down, withdrawal requires written consent of all parties or leave of the court on just terms.
The Court adopted its earlier exposition in Beijing Industrial Designing & Researching Institute v Lagoon Development Limited, which maps Order 25 into three scenarios, and classified the present case within the third scenario because contested steps had been taken despite the suit not being set down for hearing.
Legal principles established
#- Where a suit has been set down for hearing but no written consent to discontinuance exists, the plaintiff must obtain leave of the court to withdraw, on such terms as to costs as are just; the trial judge must consider the defensive steps actually taken by defendants before declining costs.
- An appellate court will not interfere with a discretionary decision unless the judge misdirected himself on law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or the decision was plainly wrong.
- Costs follow the event as a guiding principle, but the ultimate determinant is the judiciously exercised discretion of the court, and costs do not constitute an invariable consequence of legal proceedings.
Court orders
#- 1.The ruling dated 19th August 2016 declining to grant costs to the appellants is set aside
- 2.The appellants shall have the costs of the withdrawn suit at the High Court
- 3.The interested party is not entitled to costs at the High Court as it did not file an appeal against the said decision
- 4.The appellants and the interested party shall have the costs of this appeal
- On appeal from
- High Court of Kenya at Mombasa
- H.C. COMM No. 23 of 2016
- Jurisdiction invoked
- First appeal / appellate jurisdiction of the Court of Appeal over the High Court ruling on costs
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Syenergy Industrial Credit Ltd v Cape Holdings Ltd (Environment and Land Case 440 of 2011) [2026] KEELC 4803 (KLR)[2026] KEELC 4803 (KLR)23 Jul 2026applied
Cite this brief
#Cite this brief
Caselaw, "Canyon Properties Limited & 3 others v Eliud Kipchirchir Bett & 1 other", Case Analysis (2017). Civil Appeal No. 96 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/115/eng@2017-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.