Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedEnvironment & Land Petition E011 of 2023· [2023] KEELC 19107 (KLR)

Owino & 2 others v Shining Hope for Communities (SHOFCO) & another

Environment and Land Court of Kenya
18 July 2023
MMM.D. Mwangi
3,181 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that settling a case out of court doesn't automatically cost you your legal fees, awarding Kibera petitioners Kshs. 200,000.

What this practically means

#

Executive summary

#
The Petitioners filed a constitutional petition dated March 6, 2023 in the Environment and Land Court at Nairobi alleging violation of their constitutional rights by SHOFCO and its Board of Directors, apparently concerning a faulty pillar that had left an open and untreated sewer environment in Kibera. The petition was accompanied by an interim application. Upon service, the Respondents filed responses including a preliminary objection. The parties then agreed to attempt out-of-court settlement; the matter was marked as settled by consent, with only the issue of costs left to the court, and parties filed submissions on costs alone. The Petitioners, as the purportedly successful party, sought Kshs. 900,000/- comprising Kshs. 500,000/- damages and Kshs. 400,000/- legal fees, with interest. The Respondents denied liability, argued the consent settlement meant no party won, urged that each party bear own costs or, alternatively, Kshs. 30,000/-, and opposed damages as unproved. M.D. Mwangi J framed two issues: entitlement to costs and quantum. Relying on Rule 26 of the Mutunga Rules and Morgan Air Cargo, the court held that a consent settlement does not automatically dis-entitle a party to costs; considering the entire chain of events and the Respondents' rectification of the faulty pillar, costs were awarded to the Petitioners. However, damages were refused as unproved and barred by the consent, and the project value was rejected as a basis for computing costs. Guided by Joreth Limited and Rule 26, the court awarded Kshs. 200,000/- as costs of the Petition.

Key legal issues

#
01

Whether a petitioner whose petition is settled by consent is entitled to costs

Holding

Yes - the court found no reason to deny the Petitioners costs given the entire chain of events and the Respondents' rectification of the offending condition

Reasoning

Relying on Rule 26 of the Mutunga Rules and authorities including Morgan Air Cargo, the court held that settlement by consent does not automatically dis-entitle a party to costs. The court considers the conduct of parties, the subject of litigation, the circumstances leading to and termination of proceedings, and the need to promote reconciliation. Here the Respondents rectified the faulty pillar causing the sewer risk, and the Petitioners were justified in instituting proceedings.

p. 5
02

Quantum of costs where parties agreed on 'reasonable costs' but failed to agree the amount

Holding

The estimated project value cannot be the basis for calculating costs; the court awarded Kshs. 200,000/-

Reasoning

Guided by Joreth Limited v Kigano & Associates, the value of the subject matter is ascertained from the pleadings, judgment or settlement; here the constitutional claim had no subject-matter value and the project figure was a mere estimate. Considering the nature of the matter, the project's community importance, and that the matter did not proceed to full trial, the court exercised its discretion under Rule 26 to award Kshs. 200,000/-.

p. 6
03

Whether damages could be awarded after settlement by consent

Holding

No - damages were unproved and the consent closed the matter, leaving only costs for assessment

Reasoning

The court agreed with the Respondents that damages claimed had not been proved, citing Bonham Carter v Hyde Park Hotel via David Bagine v Martin Bundi. Further, the consent terms were clear that the matter was settled and only costs were left to the court; the Petitioners could not reopen the claim for damages through the back door.

p. 6

Legal principles established

#
  • A consent recorded in settlement of a proceeding is not an automatic dis-entitlement of costs; the court may still award costs considering the entire chain of events.
  • Damages must be proved; particulars alone are insufficient.

Court orders

#
  1. 1.The Petitioners are awarded a sum of Kshs. 200,000/= as costs of this Petition
  2. 2.Damages claimed by the Petitioners are refused

Authorities

#

Legislation

  • Constitution of KenyaArticle 159(2)(c)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 ('Mutunga Rules')Rule 26
  • Civil Procedure Act, Cap. 21Section 27

Cases cited (8)

  • Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others
    (2014) eKLR, Petition No. 4 of 2012

    Costs follow the event; public interest litigation tends to be exempted from award of costs

  • Republic v. Rosemary Wairimu Munene (Ex parte Applicant) v. Ihururu Dairy Farmers Co-operative Society Ltd
    Judicial Review Application No. 6 of 2004

    Costs are discretionary and compensate the successful party, not penalize the losing party

  • Devram Dattan v Dawda
    [1949] EACA 35

    Discretion on costs is judicial and appellate courts will not interfere where grounds exist

  • Rufus Njuguna Muringu & Another v Martha Muriithi & 2 Others
    [2012] eKLR

    Consent settlement does not mean a party succeeded; each party may bear own costs

  • Morgan Air Cargo Ltd v Everest Enterprises Ltd
    (2014) eKLR

    Consent settlement is not automatic dis-entitlement of costs; factors for awarding costs

  • David Bagine v Martin Bundi
    [1997] eKLR

    Damages must be proved, citing Bonham Carter v Hyde Park Hotel

  • Bonham Carter v Hyde Park Hotel Limited
    (1948) 64 TLR 177

    Plaintiffs must prove damage; particulars alone are insufficient

  • Joreth Limited v Kigano & Associates
    [2002] eKLR

    Value of subject matter for taxation determined from pleadings, judgment or settlement; otherwise taxing officer's discretion

Jurisdiction invoked
Article 23 of the Constitution read with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules), Rule 26

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Owino & 2 others v Shining Hope for Communities (SHOFCO) & another", Case Analysis (2023). Environment & Land Petition E011 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19107/eng@2023-07-18

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