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ELCOtherNot stated in judgment

Macharia t/a Beulah Timber & Hardware & another v Dhanjil & another (Land Case e180 of 2024) [2025] KEELC 6539 (KLR)

Environment and Land Court
1 October 2025
COChristine Ochieng
1,472 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that defendants who never formally entered appearance or filed a defence cannot claim legal costs, even after a suit is withdrawn.

What this practically means

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Executive summary

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The Plaintiffs withdrew this suit by Notice of Withdrawal dated 23rd May 2024, leaving only the question of costs between the parties. The Plaintiffs had filed suit claiming ownership of LR No. 209/2762/26, alleging they purchased it from the 1st Defendant's deceased mother. Their action was triggered by a proclamation for rent served on 24th April 2024, together with a court order of 4th December 2023 in Milimani HCP&A No. 1491 of 2017 indicating the property formed part of the estate of the late Guardial Kaur Sihra. They withdrew after the Defendants' Counsel intimated that the Power of Attorney under which the transfer was executed had been revoked. The Defendants sought costs, citing expenditure on Counsel and court appearances, and relying on the Supreme Court's decision in Jasbir Singh Rai that costs follow the event. The Plaintiffs urged that each party bear its own costs, noting the Defendants had not filed any documents, not even a Notice of Appointment. Applying Section 27(1) of the Civil Procedure Act and Order 25 of the Civil Procedure Rules, and adopting the factors in Cecilia Karuru Ngayu v Barclays Bank of Kenya, the court held that although costs follow the event, the court may depart for good reason. The Plaintiffs' unrebutted explanation for filing and withdrawing the suit, and the fact that the Defendants never entered appearance or filed a defence, meant the Defendants were not entitled to costs; court appearances alone were immaterial. The court directed that each party bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Plaintiffs should bear the costs of the suit following withdrawal
  2. 2.Whether a Defendant who never entered appearance nor filed a defence but made court appearances is entitled to costs

Key legal issues

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Whether the Defendants are entitled to costs of the withdrawn suit

Holding

The Defendants are not entitled to costs; each party bears its own costs.

Reasoning

Section 27(1) of the Civil Procedure Act makes costs follow the event but preserves judicial discretion to depart for good reason. Applying the factors in Cecilia Karuru Ngayu, the court found the Plaintiffs gave an unrebutted explanation for filing and withdrawing the suit (a proclamation for rent and information from the Defendants' Counsel that the Power of Attorney had been revoked). Since the Defendants never entered appearance or filed a defence, their court appearances did not entitle them to costs.

p. 3

Legal principles established

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  • While costs generally follow the event under Section 27(1) of the Civil Procedure Act, the court has discretion to depart from that rule for good reason, including where a suit is withdrawn before the defendant enters appearance or files a defence.
  • A defendant who has not entered appearance or filed a defence is not entitled to costs merely by virtue of having made court appearances.

Court orders

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  1. 1.Each party to bear their own costs of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

CO
majority

Wrote the judgment

Jurisdiction invoked
Section 27 of the Civil Procedure Act; Order 25 Rules 1 and 3 of the Civil Procedure Rules

Relief refused

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Defendants' claim for costs of the suit

The suit was withdrawn before the Defendants entered appearance or filed a defence, so the Defendants are not entitled to costs notwithstanding their court appearances.

p. 3

Costs

Each party do bear their own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

While Section 27 (1) provides a general rule that costs follow the event, but the Court has discretion to depart from the rule only for good reason.
p. 2Discretion to depart from the costs-follow-the-event rule
I find that the Defendants are not entitled to costs since the suit was withdrawn before they entered an Appearance nor filed a Defence. I opine that it is immaterial whether they made several court appearances or not.
p. 3Entitlement to costs where defendant never entered appearance or filed defence
In that regard, I direct that each party do bear their own costs.
p. 3Final order on costs

Issues in the judgment

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minor

The judgment does not state the case number, parties' names or the court itself in the body; only the supporting bench details appear at the end.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Macharia t/a Beulah Timber & Hardware & another v Dhanjil & another (Land Case e180 of 2024) [2025] KEELC 6539 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6539/eng@2025-10-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.