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ELCOtherMachakos ELC Appeal (Memorandum of Appeal filed 12th April 2019, arising from Mavoko CMCC No. 208 of 2018)· [2021] KEELC 4262 (KLR)

Charles Muriu Mwangi v Benjamin Makokha Nyongesa [2021] KEELC 4262 (KLR)

Environment and Land Court
19 February 2021
4,671 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Withdrawing an appeal in Kenya won't save you from paying the other side's legal costs if your case dragged them to court needlessly.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (O.A. Angote, Judge) on a single question: whether the Respondent is entitled to costs after the Appellant's advocate orally applied, on 7th October 2020, to withdraw the appeal against the judgment of the Senior Principal Magistrate's Court at Mavoko in Civil Case No. 208 of 2018. The lower court had found on 15th March 2019 that the parties' dispute over Mavoko Town Block 2/5314 and 2/7680 was a boundary dispute outside its jurisdiction under Section 18(2) of the Land Registration Act, and ordered each party to bear its own costs. The Appellant sought withdrawal with no order as to costs, relying on Article 159(2)(c) of the Constitution and Section 27(1) of the Civil Procedure Act, arguing the appeal was abandoned to pursue resolution by the Land Registrar. The Respondent, who had filed a cross-appeal on costs, argued that costs follow the event, that the dispute was purely private, raised no novel issue, and that the Appellant had abused process by filing parallel proceedings - this appeal, Machakos ELC JR No. 33 of 2019, and a boundary reference to the Land Registrar. Applying Section 27(1), Order 25 Rule 3 of the Civil Procedure Rules and the Supreme Court's decision in Jasbir Singh Rai, the court found no good reason to deny the Respondent costs. The appeal was marked withdrawn and the Appellant ordered to pay the costs of the appeal.

Key legal issues

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01

Whether costs should follow the event upon withdrawal of an appeal

Holding

The Appellant was ordered to pay the costs of the Appeal notwithstanding the withdrawal, because no good reason existed to depart from the general rule that costs follow the event.

Reasoning

The court applied Section 27(1) of the Civil Procedure Act and the Supreme Court's guidance in Jasbir Singh Rai on the discretionary nature of costs. The dispute was private, raised no novel point of law, and the Respondent's conduct did not disentitle him to costs. The Appellant had filed parallel proceedings (the appeal, a judicial review application and a boundary reference to the Land Registrar), prompting the Respondent to engage an advocate, file a preliminary objection and a cross-appeal - costs that would have been avoided had the appeal not been filed. Withdrawal was therefore made at the instance of a party whose filing occasioned unnecessary expense.

p. 5
02

Relevance of the parties' conduct and the stage of proceedings to the costs discretion

Holding

The court may consider the conduct of parties, the stage at which proceedings terminate, the nature of the litigation and the need to promote reconciliation under Article 159(2)(c).

Reasoning

Relying on Cecilia Karuru Ngayu, Samson K.A. Tim and Joseph Oduor Anode, the court accepted that the discretion on costs is judicial, not mathematical. Relevant factors include the conduct of parties, the circumstances leading to and terminating proceedings, the stage of termination and the need to promote ADR. On the facts, the Appellant's initiation of multiple parallel processes over the same land, and the withdrawal only after the Respondent fixed the appeal for hearing, weighed against allowing the Appellant to walk away without paying costs.

p. 5

Legal principles established

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  • Under Section 27(1) of the Civil Procedure Act, costs follow the event unless the court, for good reason, otherwise orders; the award of costs is a discretionary exercise to be applied judicially on a case-by-case basis.
  • Public interest, conduct of parties and novelty of the question raised are recognised 'good reasons' that may justify denying costs to a successful party.
  • A party who withdraws an appeal after the respondent has been put to expense (filing a preliminary objection and cross-appeal) will ordinarily bear the costs of the appeal.

Court orders

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  1. 1.The Appeal filed by the Appellant is marked as withdrawn.
  2. 2.The Appellant to pay the costs of the Appeal.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(c)
  • Civil Procedure ActSection 27(1) and (2)
  • Civil Procedure Rules, 2010Order 25 Rule 3
  • Land Registration ActSection 18(2)

Cases cited (9)

  • Cecilia Karuru Ngayu vs. Barclays Bank of Kenya & another
    [2016] eKLR
  • Impressa Ing Fortunato Federice vs. Nabwire
    [2001] 2 EA 383
  • Samson K.A. Tim vs. D.M. Machage
    [2019] eKLR
  • Jasbir Singh Rai & 3 others vs. Tarlochan Singh Rai & 4 others
    [2014] eKLR
  • Amoni Thomas Amfry and Another v. The Minister for Lands and Another
    Nairobi High Court Petition No. 6 of 2013
  • Harun Mwau and Others v. Attorney-General and Others
    Nairobi High Court Petition No. 65 of 2011, [2012] eKLR
  • Raila Odinga and Others v. The Independent Electoral and Boundaries Commission and Others
    Sup. Court Petition No. 5 of 2013
  • Samuel Kamau Macharia and Another v. Kenya Commercial Bank and Two Others
    Sup. Ct. Application No. 2 of 2011 [2012] eKLR
  • Joseph Oduor Anode vs. Kenya Red Cross Society
    [2012] eKLR
On appeal from
Senior Principal Magistrate's Court at Mavoko
Civil Case No. 208 of 2018
Jurisdiction invoked
Appellate jurisdiction over the subordinate court pursuant to Section 27 of the Civil Procedure Act (discretion on costs); Article 159(2)(c) of the Constitution cited on alternative dispute resolution

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, "Charles Muriu Mwangi v Benjamin Makokha Nyongesa [2021] KEELC 4262 (KLR)", Case Analysis (2021). Machakos ELC Appeal (Memorandum of Appeal filed 12th April 2019, arising from Mavoko CMCC No. 208 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4262/eng@2021-02-19

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