Further, that the leases over two shops had not expired by the time the Defendants demolished the suit property. The Plaintiffs relied on the decision in Morgan Air Cargo Limited v Evrest Enterprises Limited [] eKLR in which the court found that in the absence of a consent stating that no costs are payable, the court falls back to its discretion which is to be exercised in accordance with established legal principles and the circumstances of each case.
The Plaintiffs urged the court to grant them costs so as to be indemnified from the actions of the Defendants who in addition to breaching the terms of the lease also destroyed the suit property. They relied on Peter Muriuki Ngure v Equity Bank K Limited [] eKLR where the court observed that the award of costs is all about indemnification and that the purpose of costs was to indemnify the successful party for the expenses they incurred in hiring a counsel to enforce or defend their legal rights.
The Plaintiffs urged the court that it was only reasonable for them to be awarded costs to cushion them from the losses occasioned by the adverse actions of the Defendants. They implored the court to consider the circumstances under which the suit was terminated and the general conduct of the parties. They submitted that the conduct of the Defendants is what led to this suit being overtaken by event.
The 1 st Defendant submitted that the Plaintiffs had not given any good reason as to why costs should not be awarded to the Defendants pursuant to Section 27 of the Civil Procedure Act. The 1 st Defendant submitted that the Plaintiffs sought to withdraw the suit. The 1 st Defendant submitted that the Plaintiffs had not demonstrated any special circumstances as to why costs should not be awarded to the Defendants.
The Plaintiffs having withdrawn the suit following the judgment of Tuiyott J. The Plaintiff filed suit seeking orders of injunction, general damages and for the Defendants to allow them to continue enjoying quiet possession of the shops they had leased until those leases expired.
The 1 st Defendant entered into a long term lease with the 2 nd Defendant which entitled the 2 nd Defendant to demolish the building and put up another structure on that land.
Based on the new arrangement, the shops which the Plaintiffs had leased were demolished. Taking into consideration the conduct of the 1 st Defendant in dealing with the suit premises which it had leased to the Plaintiffs, the court awards the Plaintiffs the costs of the suit. Those costs will be borne by the 1 st Defendant since it is the common denominator in both sets of leases.
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