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ELCPartially AllowedOriginating Summons dated 16th December 2018, filed 16th January 2019 (Migori Environment and Land Court)· [2020] KEELC 1138 (KLR)

Jane Ghati Mwita v Robert Matinde Moronge [2020] KEELC 1138 (KLR)

Environment and Land Court of Kenya
17 September 2020
GOG.M.A Ongondo
1,544 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a land claimant only two-thirds of her legal costs because she settled for less land than she originally sought.

What this practically means

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Executive summary

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This Environment and Land Court decision at Migori, delivered by G.M.A Ongondo J on 17th September 2020, dealt solely with the question of costs of an adverse possession suit brought by Jane Ghati Mwita against Robert Matinde Moronge by originating summons dated 16th December 2018, invoking Sections 7 and 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules. The claim sought a declaration that the plaintiff had acquired title to LR No. Bukira/Buhirimonono/226 by adverse possession, an order for registration and transfer, costs and interest. Before hearing, the parties, encouraged by the court under Article 159(2)(c) of the Constitution and Section 20 of the Environment and Land Court Act, entered a consent on 24th February 2020 under which the defendant would transfer approximately 2.2 acres of Title No. Bukira/Buhirimonono/5252 instead of the three acres in the 2004 sale agreement, with the plaintiff bearing survey and transfer costs, leaving costs to written submissions. The plaintiff submitted that as the successful party she was entitled to costs, relying on Cecilia Karuru Ngayu v Barclays Bank of Kenya and Kuloba's Judicial Hints on Civil Procedure. The defendant filed no submissions. Applying Section 27(1) of the Civil Procedure Act and the principle that costs follow the event subject to judicial discretion, and noting the plaintiff succeeded only to the extent of 2.2 acres rather than the three acres sought, the court entered judgment in terms of the consent and awarded the plaintiff two thirds of the costs of the suit. It is so ordered.

Key legal issues

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Whether the plaintiff is entitled to the costs of the suit after partial success by consent

Holding

The plaintiff, having considerably succeeded under the consent, was awarded two thirds of the costs of the suit

Reasoning

The suit was largely compromised by a consent under which the defendant agreed to transfer 2.2 acres instead of the three acres claimed. Applying the principle that costs follow the event under Section 27(1) of the Civil Procedure Act, and endorsing persuasive authorities that costs should go to the successful party absent good reason to depart, the court found the plaintiff had discharged the burden of proof and succeeded considerably, warranting costs proportionate to the extent of success.

p. 2

Legal principles established

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  • Costs of a suit follow the event, within the discretion of the court, under the proviso to Section 27(1) of the Civil Procedure Act
  • The rule that costs follow the event is not invariable; the ultimate factor is judicial discretion

Court orders

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  1. 1.Judgment entered for the plaintiff against the defendant in terms of the consent (transfer of approximately 2.2 acres of Title No. Bukira/Buhirimonono/5252, with the plaintiff meeting the cost of survey and transfer)
  2. 2.The plaintiff to have two thirds (2/3) of the costs of the instant suit
Jurisdiction invoked
Sections 3, 3A and 19 of the Environment and Land Court Act, 2015 and Sections 7 and 38 of the Limitation of Actions Act, Section 1A and 1B of the Civil Procedure Act and Order 37 Rules 7 and 14 of the Civil Procedure Rules, 2010

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, "Jane Ghati Mwita v Robert Matinde Moronge [2020] KEELC 1138 (KLR)", Case Analysis (2020). Originating Summons dated 16th December 2018, filed 16th January 2019 (Migori Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1138/eng@2020-09-17

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