Charles Muriu Mwangi v Benjamin Makokha Nyongesa [2021] KEELC 4262 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether costs should follow the event upon withdrawal of an appeal
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.
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.
Relevance of the parties' conduct and the stage of proceedings to the costs discretion
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).
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.
Legal principles established
#- 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
#- 1.The Appeal filed by the Appellant is marked as withdrawn.
- 2.The Appellant to pay the costs of the Appeal.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.