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ELCPartially AllowedConstitutional Petition (Malindi) filed 25th November 2014· [2019] KEELC 1553 (KLR)

Omar Abdalla Jelani & 5 others v Attorney General & 4 others [2019] KEELC 1553 (KLR)

Environment and Land Court (Constitutional Petition) / High Court
8 October 2019
JOJ.O. Olola
2,379 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenyan landowners who forced a government compensation settlement through court won their case costs, but the judge left the amount to taxation.

What this practically means

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Executive summary

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The Petitioners, landowners affected by the acquisition of their land for the LAPSSET Project at Kililana, Mashudwani and Hindi Magogoni Settlement Schemes, moved the Court by Notice of Motion dated 19th December 2017 seeking to have their 2014 Constitutional Petition marked as compromised and fully settled, a determination that party and party costs are payable and by whom, and an assessment of those costs at Kshs 132,511,044.96 against the National Land Commission (5th Respondent) or such other party as the Court deemed fit. The application was supported by the affidavit of their advocate, Christine Kituyi. The Attorney General opposed the motion as incompetent, exaggerated and beyond the Court's jurisdiction; the Kenya Ports Authority (3rd Respondent) admitted releasing Kshs 1,319,586,674.55 to the National Land Commission but disclaimed responsibility for delays and costs; and the National Land Commission contended the Petition remained alive, making the claim premature, and denied liability as it was not the acquiring entity. The Court noted that interim orders of injunction and prohibition had been issued by Justice Angote in November 2014, and that consent orders recorded in December 2014 and February 2015 provided for verification of beneficiaries and release of funds. Finding that the Petitioners had in fact been compensated, the Court held the suit substantially settled and compromised. Applying Section 27 of the Civil Procedure Act and the principle that costs follow the event, the Court found no reason to deny the Petitioners costs, but declined to assess them at the sum claimed, leaving quantum to agreement or taxation. The matter was marked as compromised subject to payment of costs by the Respondents, with the application costs in the cause.

Key legal issues

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01

Whether the suit had been substantially compromised so as to be marked as settled

Holding

Yes - the Petitioners having been compensated, the suit was substantially settled and compromised

Reasoning

The 3rd Respondent admitted releasing Kshs 1,319,586,674.55 to the 5th Respondent for compensation; the 5th Respondent compensated the parties and supplied a list of those compensated. Given the admission by the Petitioners' Advocates that compensation was paid, the court was satisfied the suit had been substantially settled and/or compromised notwithstanding the 5th Respondent's protest that the suit remained alive.

p. 4
02

Whether the Petitioners were entitled to costs despite settlement by consent

Holding

Yes - costs follow the event and the settlement was achieved after the Respondents were dragged to Court

Reasoning

Applying Section 27 of the Civil Procedure Act and the 'event' doctrine, the court found the Petitioners rightfully came to Court to protect their land from acquisition without compensation; the Respondents saw sense and compromised. Given the entire chain of events and numerous court attendances, there was no reason to deny costs.

p. 5
03

Whether the Court should assess the costs at the claimed Kshs 132,511,044.96

Holding

No - costs to be agreed or taxed by the Taxing Master

Reasoning

The court declined the invitation to fix costs at the sum claimed, holding assessment in that manner was outside its province, and instead directed that costs be agreed or taxed by the Taxing Master.

p. 5

Legal principles established

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  • Where a suit is adjusted by lawful compromise or the defendant satisfies the plaintiff, the court shall on application record the agreement and enter judgment accordingly, and may make further orders for implementation
  • 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 directs; where there are separate issues, costs of a particular issue go to the party who succeeds on it

Court orders

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  1. 1.That this matter is hereby marked as compromised and fully settled subject to payment of costs
  2. 2.That the Respondents do pay to the Petitioners the cost of this case as may be agreed or taxed by the Taxing Master of this Court
  3. 3.That the costs of this application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 25 Rule 5
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 27

Cases cited (1)

  • Cecellia Kamuru Ngayu –vs- Barclays Bank of Kenya & Another
    (2016) eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A and 27 of the Civil Procedure Act and Order 25 Rule 5 of the Civil Procedure Rules

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, "Omar Abdalla Jelani & 5 others v Attorney General & 4 others [2019] KEELC 1553 (KLR)", Case Analysis (2019). Constitutional Petition (Malindi) filed 25th November 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1553/eng@2019-10-08

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