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ELCDismissedKisii ELC Case No. 352 of 2013 (consolidated with Kisii ELC Case No. 459 of 2013)· [2024] KEELC 1318 (KLR)

Gwaro v Yoge & 2 others (Environment & Land Case 352 & 459 of 2013 (Consolidated)) [2024] KEELC 1318 (KLR)

Environment and Land Court
12 March 2024
MSMunyao Sila
1,047 words in judgment
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The bottom line

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A Kenyan court refused to award costs in a family land dispute because the application was filed past the deadline, so each side pays its own legal bills.

What this practically means

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Executive summary

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This ruling by Munyao Sila J of the Environment and Land Court at Kisii, dated 12 March 2024, determines an application dated 13 October 2023 by Wilfred Monyenye Yoge, the defendant in Kisii ELC No. 352 of 2013 and 1st defendant in Kisii ELC No. 459 of 2013, seeking costs of the two consolidated suits which had been withdrawn. The suits arose from a land dispute over parcel Nyaribari Chache/B/B/Boburia/7751: one suit claimed trespass and damages, the other sought a declaration of ownership and a permanent injunction to stop the burial of Samwel Gwaro on the land. An injunction had been granted by Okong'o J on 3 December 2013 pending a revocation application in Kisii High Court Succession Cause No. 302 of 1995, and the suits were held in abeyance. On 25 July 2023, following the nullification of the grant under which the plaintiff obtained title, counsel indicated he would withdraw the suits; the court marked them withdrawn and gave 14 days for any costs application, failing which the suits would stand withdrawn with no orders as to costs. The applicant filed out of time. The court held that the 25 July 2023 order was self-executing, so the suits stood withdrawn with no orders as to costs. Even on the merits, costs were refused: the dispute was between family members, and the suits were overtaken by the Succession Court's nullification of the grant, an event outside the plaintiff's control. The application was dismissed, each party directed to bear their own costs, and the files closed.

Key legal issues

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01

Effect of failure to file costs application within the 14-day window

Holding

The application is out of time and the default position under the 25 July 2023 order - withdrawal with no orders as to costs - stands

Reasoning

The court had directed on 25 July 2023 that any party seeking costs file an application within 14 days, failing which the suits would be deemed withdrawn with no orders as to costs. The applicant filed on 13 October 2023, well outside that window. The court characterised the order as self-executing, so the default position had already taken effect without further order.

02

Whether costs ought to be awarded even if the application were considered on merits

Holding

Costs would still be refused because the parties are family members and the suits lapsed through events outside the plaintiff's control

Reasoning

The court stated that even on merits it would dismiss the application for two reasons: the dispute involved family members, whose litigation the court would not burden with costs; and the plaintiff's suits were overtaken by events outside his control when the Succession Court nullified the grant that had given him title to the suit land.

p. 3

Legal principles established

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  • A direction that suits be deemed withdrawn with no orders as to costs unless a costs application is filed within a stated period is self-executing, and a party who fails to file within that period cannot obtain costs thereafter

Court orders

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  1. 1.The application dated 13 October 2023 seeking costs of the withdrawn suits is dismissed
  2. 2.Each party to bear his/her own costs of the suits Kisii ELC No. 352 of 2013 and Kisii ELC No. 459 of 2013
  3. 3.The two court files to be closed
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court over costs of withdrawn suits before it

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, "Gwaro v Yoge & 2 others (Environment & Land Case 352 & 459 of 2013 (Consolidated)) [2024] KEELC 1318 (KLR)", Case Analysis (2024). Kisii ELC Case No. 352 of 2013 (consolidated with Kisii ELC Case No. 459 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1318/eng@2024-03-12

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