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ELCOtherPetition No 42 of 2014· [2018] KEELC 985 (KLR)

Peter Kinoti Mikwa & 5 others v Kenya Forest Services & 2 others [2018] KEELC 985 (KLR)

Environment and Land Court
7 November 2018
LMLUCY N. MBUGUA
941 words in judgment
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The bottom line

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The Environment and Land Court in Meru ruled that neither side in a forest boundary dispute won outright, so every party must pay its own legal costs.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Meru, delivered by Hon. Lucy N. Mbugua, ELC Judge, determined the issue of costs after a consent judgment was recorded on 19 September 2018. The consent judgment adopted a harmonized survey report on boundary re-alignment in Lower Imenti Forest, filed in court on 4 July 2016, and left the issue of costs to be determined by the court based on submissions filed by the petitioner's 1st and 2nd respondents. The petitioners, whose land bordered the forest reserve, argued that costs follow the event and that they were successful litigants because the 1st and 2nd respondents had agreed to remove the offending electric fence and re-align it to the correct boundary. The 1st respondent argued that neither party could be said to have been successful as the resolution came about through the cooperation of all parties, and the 2nd respondent wholly associated itself with those submissions. The court considered Section 27(1) of the Civil Procedure Act, which confers discretion on the court on costs, and noted the survey report's findings that the boundary was not clear before the fence was erected, that both the community and the Kenya Forest Service had encroached onto each other's land, and that the electric fence protects the community from wild animals. Agreeing with the 1st respondent that neither party could claim to be successful, and considering the need to promote harmonious existence to reduce human-wildlife conflict, the court exercised its discretion and ordered that each party bears their own costs of the suit.

Key legal issues

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01

Whether the petitioners, as alleged successful litigants, were entitled to costs under the costs-follow-the-event principle

Holding

Costs were not awarded to the petitioners because neither party could claim to be successful and the court, in its discretion, ordered each party to bear its own costs

Reasoning

The court adopted the harmonized survey report as a consent judgment, which found that both the community and Kenya Forest Service had encroached on each other's land and that the boundary was not clear before the fence was erected. Because the dispute was resolved through the cooperation of all parties and the electric fence promotes harmonious coexistence reducing human-wildlife conflict, the court found no wholly successful party and exercised its discretion under Section 27(1) of the Civil Procedure Act to order each party to bear its own costs.

p. 2

Legal principles established

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  • Costs of and incidental to all suits are in the discretion of the court, and costs follow the event unless the court for good reason otherwise orders
  • Where a consent judgment resolves a dispute through mutual cooperation and neither party is wholly successful, the court may order each party to bear its own costs

Court orders

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  1. 1.Each party bears their own costs of the suit

Authorities

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Legislation

  • Civil Procedure ActSection 27(1)

Cases cited (5)

  • Supermarine Handling Services Ltd vs Kenya Revenue Authority
    (2010) eKLR
  • Jasbir Singh Rai & 3 others vs Tarlochan Singh Rai & 4 others
    (2014) eKLR
  • Attorney General vs Theuri
    (1985) eKLR
  • John Kamunya & another vs John Nginyi Muchiri & 3 others
    (2015) eKLR
  • Rufus Njuguna Miringu and another vs Martha Murithi and 2 others
    (2012) eKLR
Jurisdiction invoked
Discretion to award costs under Section 27(1) of the Civil Procedure Act following consent judgment

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, "Peter Kinoti Mikwa & 5 others v Kenya Forest Services & 2 others [2018] KEELC 985 (KLR)", Case Analysis (2018). Petition No 42 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/985/eng@2018-11-07

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