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ELCDismissedNot stated in the ruling (Notice of Motion dated 1st October, 2019)· [2020] KEELC 471 (KLR)

Daniel Githu Mboi & 3 others v Kenya Electricity Transmission Co. Ltd [2020] KEELC 471 (KLR)

Environment and Land Court
26 November 2020
SOS. Okong'o
2,145 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a costs ruling arising from a withdrawn Environment and Land Court suit. The plaintiffs, proprietors of Kajiado/Olchoro Onyore/8559, 8560 and 6941, sued the defendant in March 2014 over its intention to acquire portions of their land for a way leave for the Suswa–Isinya 400 KV Electricity Transmission Line Project, having offered compensation of Kshs. 1,771,707/=. The plaintiffs demanded Kshs. 24,000,000/= and sought a permanent injunction, compensation before any installation, and general damages. An interlocutory injunction application was compromised by consent status quo orders. On 4th October, 2016, the parties informed the court that the defendant had re-routed its transmission line away from the suit properties; the suit was marked withdrawn with costs left for agreement or court determination. The parties did not agree, and the plaintiffs moved the court by Notice of Motion dated 1st October, 2019 seeking the defendant's taxation of their costs, contending the suit was triggered by the defendant's unlawful actions. The defendant opposed through its advocate Yabesh Kambi Nyandoro, contending the plaintiffs rejected improved offers, demanded unreasonably high compensation, and that the defendant bore additional costs in re-routing. The court, applying section 27 of the Civil Procedure Act and the cited authorities, found no evidence the defendant had entered or threatened to enter the suit properties when the suit was filed, that the plaintiffs came to court prematurely, and that an unacceptable compensation offer was not a wrong justifying suit. The application was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether costs should be awarded to the plaintiffs on a withdrawn suit where the dispute was resolved by the defendant re-routing its transmission line

Holding

The application for costs was dismissed; each party was left to bear its own costs because the suit was premature and the defendant had committed no wrong at filing

Reasoning

The court reviewed the record and found no allegation or evidence that the defendant had entered or threatened to enter the suit properties when the suit was filed; the parties had confirmed in court that the defendant had not entered the properties and status quo was maintained by consent. The suit was withdrawn because the defendant re-routed the line, destroying the substratum. An unacceptable compensation offer was not a wrong justifying suit, so there was no basis for condemning the defendant to pay costs.

p. 3
02

The legal principles governing the award of costs

Holding

Costs are discretionary under section 27 of the Civil Procedure Act and generally follow the event, but a plaintiff must show enforcement of a legal right free of misconduct to claim costs as of course

Reasoning

Relying on the text Judicial Hints On Civil Procedure, 2nd Edition, Farah Awad Gullet v CMC Motors Group Limited and Party of Independent Candidates of Kenya v Mutula Kilonzo, the court restated that costs are a matter of judicial discretion, that the general rule is that costs go to the successful party, and that a plaintiff enforcing a legal right without misconduct is entitled to costs as a matter of course. The court then found the plaintiffs could not bring themselves within these principles.

p. 2

Legal principles established

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  • Where a plaintiff comes to enforce a legal right without misconduct, neglect or vexatious conduct, costs follow as a matter of course; but a mere unacceptable offer of compensation is not a wrong justifying a suit
  • Costs are discretionary under section 27 of the Civil Procedure Act and generally follow the event unless the court for good reason otherwise orders

Court orders

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  1. 1.The plaintiffs' Notice of Motion dated 1st October, 2019 is dismissed
  2. 2.Each party to bear its own costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 27(1) and (2)

Cases cited (2)

  • Farah Awad Gullet v CMC Motors Group Limited
    [2018] eKLR
  • Party of Independent Candidates of Kenya v Mutula Kilonzo & 2 others
    HC EP No. 6 of 2013
Jurisdiction invoked
Section 27 of the Civil Procedure Act (discretion as to costs)

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, "Daniel Githu Mboi & 3 others v Kenya Electricity Transmission Co. Ltd [2020] KEELC 471 (KLR)", Case Analysis (2020). Not stated in the ruling (Notice of Motion dated 1st October, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/471/eng@2020-11-26

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