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ELCPartially AllowedNot stated in the extract· [2021] KEELC 3580 (KLR)

Paul Kimisik Murei & 2 others v Alice Jemutai Too & another [2021] KEELC 3580 (KLR)

Environment and Land Court
28 April 2021
SKS. M. Kibunja
668 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (S. M. Kibunja, J) dealt solely with the question of costs after the parties settled the main suit by consent and agreed to file written submissions on costs under Order D of the consent of 28th October 2020. The Plaintiffs, relying on Canyon Properties Ltd and Jasbir Singh Rai, submitted that as the 1st Defendant was found to have encroached onto their land by about 0.8 acres and the suit had been pending over six years, costs should follow the event. The 1st Defendant, citing Section 27 of the Civil Procedure Act, Kuloba's Judicial Hints on Civil Procedure, Mutula Kilonzo and Orix Oil, argued she should get costs because execution of the consent judgment might result in demolition of her house. The court held that consent number 4 confirmed the 1st Defendant had structures on the Plaintiffs' land which she agreed to remove within 30 days of beacon placement, vindicating the Plaintiffs' encroachment claim. The successful Plaintiffs, having incurred counsel fees and court fees, were entitled to costs under Section 27 unless otherwise ordered. The likelihood of demolition of the 1st Defendant's structures in execution showed she was the losing party, not the victorious one. The court awarded the costs of the suit to the Plaintiffs against the 1st Defendant and directed digital transmission of the ruling to counsel.

Key legal issues

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Entitlement to costs following settlement of the suit by consent

Holding

The Plaintiffs were vindicated by the consent of 28th January 2020, which confirmed the 1st Defendant's encroachment and agreed removal of her structures; as the successful party they are entitled to costs under Section 27 of the Civil Procedure Act.

Reasoning

The consent recorded that the 1st Defendant had structures on the Plaintiffs' land to be removed within 30 days of beacon placement, vindicating the encroachment claim. The court reasoned that the successful party, having incurred expenses including counsel fees and court fees, is entitled to costs unless otherwise ordered. The prospect of demolition of the 1st Defendant's structures in execution showed she was the losing party, not a victorious one. The discretion under Section 27 was therefore exercised in favour of the Plaintiffs.

p. 1

Legal principles established

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  • A successful party is entitled to costs under Section 27 of the Civil Procedure Act unless otherwise ordered; likely demolition of a losing party's structures in execution does not confer entitlement to costs.

Court orders

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  1. 1.The costs of the suit are awarded to the Plaintiffs as against the 1st Defendant
  2. 2.The Ruling to be transmitted digitally by the Deputy Registrar to Counsel on record through their e-mail addresses

Authorities

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Legislation

  • Civil Procedure ActSection 27

Cases cited (4)

  • Canyon Properties Ltd & 3 Others Vs Eliud Kipchirchir Bett & 2 Others
    [2017] eKLR
  • Jasbir Singh Rai & 3 Others Vs Tarlochan Singh Rai & 4 Others
    (2014) eKLR
  • Party of Independent Candidate of Kenya Vs Mutula Kilonzo & 2 Others
  • Orix Oil (Kenya) Limited Vs Paul Kabeu & 2 Others
    [2014] eKLR
Jurisdiction invoked
Section 27 of the Civil Procedure Act (Chapter 21, Laws of Kenya) - discretion to award 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, "Paul Kimisik Murei & 2 others v Alice Jemutai Too & another [2021] KEELC 3580 (KLR)", Case Analysis (2021). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3580/eng@2021-04-28

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