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ELCDismissedJudicial Review Application (Objection No. 829/97 A.B.C and E referenced; substantive motion filed 8/3/2016)· [2020] KEELC 2403 (KLR)

Isaiah Miriti v Igeme District Land Adjudication and Settlement Officer & another; Joseph Mwenda Malebe & 3 others (Interested parties) [2020] KEELC 2403 (KLR)

Environment and Land Court
20 May 2020
1,778 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Meru refused to award costs to two interested parties because another party's early objection had already ended the case and costs were settled.

What this practically means

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Executive summary

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This is a costs ruling arising from a judicial review suit by Isaiah Miriti, the ex-parte applicant, who had sought orders of prohibition and certiorari to quash a decision of the 1st Respondent in Objection No. 829/97 A.B.C and E concerning land parcels 3436, 3455, 3719 and 3707. The suit was dismissed on 8.2.2018 following a preliminary objection by the 4th respondent on the ground that leave for certiorari was sought outside the six-month statutory period, with costs then awarded to the 4th respondent. The 1st and 2nd interested parties, represented by C.B. Mwongela, applied on 8.5.2019 for costs of the dismissed suit, contending that costs follow the event. The ex-parte applicant opposed, arguing costs are discretionary, that the court had conclusively ruled on costs on 4.4.2019, and that the applicants took no part in the preliminary objection that secured the dismissal. Mbugua J framed a single issue: whether the 1st and 2nd interested parties should be awarded costs. Relying on section 27 of the Civil Procedure Act, Cecilia Karuru Ngayu v Barclays Bank, Little Africa Kenya Ltd, and EACC v Nderitu Wachira, the court held that costs are discretionary and must be exercised judiciously considering the parties' conduct, the stage and manner of termination, and reconciliation. Noting that the litigation ended through the 4th interested party's preliminary objection, that taxation had concluded on 4.4.2019, and declining to disturb Judge Cherono's ruling of 8.2.2018, the court dismissed the application of 8.5.2019 with each party bearing their own costs. The ruling was delivered electronically under COVID-19 practice directions, with parties deemed to have waived compliance with Order 21 rule 1 of the Civil Procedure Rules.

Key legal issues

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01

Whether the 1st and 2nd interested parties were entitled to costs of the judicial review suit

Holding

Not entitled; costs were already conclusively dealt with in favour of the 4th interested party whose preliminary objection ended the litigation

Reasoning

Section 27 of the Civil Procedure Act confers a discretionary, not mandatory, power on costs. The court considered the conduct of parties, the stage and manner of termination and the fact that the dismissal resulted from the 4th interested party's preliminary objection, in which the 1st and 2nd interested parties played no part. Taxation proceedings had concluded on 4.4.2019. The court declined to disturb Judge Cherono's ruling of 8.2.2018 and dismissed the application with each party bearing their own costs.

p. 2
02

Whether a consent between parties precludes an award of costs

Holding

No; a party may still pursue costs notwithstanding a consent, per Little Africa Kenya Limited v Andrew Mwiti Jason

Reasoning

The court cited Gikonyo J's holding that a consent compromise does not automatically exclude costs. However, this proposition, though correct in law, did not avail the applicants because the court's discretion was exercised against them on the facts, given that the litigation ended by preliminary objection and prior costs orders and taxation had already been made.

p. 2

Legal principles established

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  • Costs of and incidental to all suits are in the discretion of the court and shall follow the event unless the court for good reason otherwise orders
  • Even where parties have entered a consent to settle proceedings, a party may still pursue an award of costs

Court orders

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  1. 1.The application dated 8.5.2019 by the 1st and 2nd interested parties seeking costs of the dismissed judicial review matter is dismissed
  2. 2.Each party to bear their own costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 27
  • Constitution of KenyaArticle 159(2)(c)
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (7)

  • Ethics and Anti-Corruption Commission v Nderitu Wachira & 2 Others
    [2016] eKLR
  • Cecilia Karuru Ngayu v Barclays Bank of Kenya & Anor
    [2016] eKLR
  • Party of Independent Candidate of Kenya vs Mutula Kilonzo & 2 Others
    HC EP No. 6 of 2013
  • Jasbir Singh Rai & Others vs Tarlochan Rai & Others
    [2002] eKLR
  • Little Kenya Africa Ltd versus Andrew Mwiti Jackson
    [2014] eKLR
  • Republic vs Rosemary Wairimu Munene, Exparte Applicant vs Ihururu Dairy Farmers Co-operative Society Ltd
    Judicial Review Application no.6 of 2014
  • Impressa Ing Fortunato Federice vs Nabwire
Jurisdiction invoked
Section 27 of the Civil Procedure Act (discretion to award costs) in a judicial review matter before the Environment and Land Court

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, "Isaiah Miriti v Igeme District Land Adjudication and Settlement Officer & another; Joseph Mwenda Malebe & 3 others (Interested parties) [2020] KEELC 2403 (KLR)", Case Analysis (2020). Judicial Review Application (Objection No. 829/97 A.B.C and E referenced; substantive motion filed 8/3/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2403/eng@2020-05-20

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