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ELCAllowed· [2022] KEELC 3430 (KLR)

Malu & 2 others v Kiveke (Environment and Land Appeal 211 of 2014) [2022] KEELC 3430 (KLR)

Environment and Land Court
7 June 2022
1,298 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Even when a Kenyan appeal settles before judgment, a party who took real steps in it can still recover court costs.

What this practically means

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Executive summary

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This judgment of the Environment and Land Court at Machakos (Christine Ochieng, J) deals solely with costs of an appeal that was compromised before determination. The appeal challenged a ruling by Hon. L. N. Mugambi in Kangundo SPMCC No. 53 of 2014 dismissing the 1st and 2nd appellants' preliminary objection. A stay-of-proceedings application pending appeal was dismissed by Justice Angote on May 15, 2020, so the lower court suit proceeded and was ultimately dismissed with costs to the appellants, rendering the appeal moot; it was compromised on November 2, 2021, with parties directed to file submissions on costs. The 1st and 2nd appellants claimed costs on the basis of steps taken in the appeal; the 3rd appellant relied on the dismissal of the respondent's suit with costs; the respondent argued that withdrawal of the appeal did not connote success and that he was never served with the record of appeal. The court, referring to Order 25 of the Civil Procedure Rules and section 27 of the Civil Procedure Act, and applying Halsbury's Laws of England and Morgan Air Cargo Limited v Evrest Enterprises Limited, held that costs remain a judicial discretion and awarded the appellants the costs of the appeal because they had undertaken substantive steps by filing documents and making several court appearances. The award is subject to taxation by the Taxing Officer.

Key legal issues

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01

Whether the appellants merit costs of the compromised appeal

Holding

The appellants are awarded costs of the appeal because they took substantive steps in it, including filing a memorandum of appeal, record of appeal and a stay application, and making several court appearances

Reasoning

The appeal from the dismissal of the preliminary objection was compromised because the lower court suit, which was never stayed, was heard and dismissed in the appellants' favour. The court exercised its discretion under section 27 of the Civil Procedure Act, guided by Order 25 and authorities on costs, holding that a party who has undertaken steps in proceedings should not be deprived of costs merely because the matter was resolved before judgment.

p. 3

Legal principles established

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  • Costs are in the discretion of the court, to be exercised judicially and in accordance with reason and justice; costs follow the event unless the court otherwise orders
  • A party who has undertaken substantive steps in an appeal by filing documents and making court appearances is entitled to costs of the appeal notwithstanding its compromise

Court orders

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  1. 1.The appellants are awarded the costs of the appeal, subject to taxation by the Taxing Officer

Authorities

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Legislation

  • Civil Procedure RulesOrder 25 rules 1 and 2
  • Civil Procedure Actsection 27

Cases cited (9)

  • Orix Oil (Kenya) Limited vs Paul Kabeu & 2 others
    (2014) eKLR
  • Southern Star Sacco Ltd Vs Vanancio Ntwiga
    Chuka Civil Appeal No. 3 of 2020
  • Robert Mwaniki Ndwiga vs Agatha Kaugi Riungu
    (2018) eKLR
  • Beijing Industrial Designing & Researching Institute vs Lagoon Development Limited
    (2015) eKLR
  • Jasbir Singh Rai & 3 others vs Tarlochan Singh Rai & 4 others
    (2014) eKLR
  • Canyon Properties Limited & 3 others vs Eliud Kipchirchir Bett & 2 others
    (2017) eKLR
  • Republic v Rosemary Wairimu Munene, Ex parte Ihururu Dairy Farmers Cooperative Society Ltd
    Judicial Review No 6 of 2014
  • Cecilia Karuru Ngayu V Barclays Bank of Kenya & another
    (2016) eKLR
  • Morgan Air Cargo Limited v Evrest Enterprises Limited
    [2014] eKLR
On appeal from
Principal Magistrate's Court, Kangundo
SPMCC No. 53 of 2014
Jurisdiction invoked
Appellate jurisdiction over the magistrate's court decision; costs determined under section 27 of the Civil Procedure Act and Order 25 of the Civil Procedure Rules

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, "Malu & 2 others v Kiveke (Environment and Land Appeal 211 of 2014) [2022] KEELC 3430 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3430/eng@2022-06-07

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