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 AllowedChamber Summons Application dated 15th June, 2023 (arising from Machakos CMCC No. E52 of 2020)· [2024] KEELC 1343 (KLR)

Mulwa v Kilonzo & 3 others (Environment and Land Appeal 39 of 2021) [2024] KEELC 1343 (KLR)

High Court of Kenya
12 March 2024
COChristine Ochieng
1,233 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

The High Court confirmed that winning a Kenyan lawsuit entitles you to costs, so the successful party can now recover them through taxation.

What this practically means

#

Executive summary

#
This was a Chamber Summons application dated 15th June 2023 by the Appellant, who had been the plaintiff in Machakos CMCC No. E52 of 2020, a land sale suit dismissed on 6th August 2021. On appeal, by judgment delivered on 23rd June 2022, the High Court set aside the trial court judgment, directed transfer of Plot Nos. 39, 40 and 61 to the Appellant or, failing that, a refund of Kshs. 825,000 with interest, and awarded the Appellant costs of the Appeal. The Appellant then sought review before the subordinate court on who should bear costs of the lower court suit; that application was dismissed on 25th May 2023. He thereafter moved the High Court seeking assessment of, or directions on, costs both in the Appeal and in the lower court suit. The Respondents opposed, arguing the issue of costs had already been substantively determined. Justice Christine Ochieng framed a single issue: whether the Appellant was entitled to the orders sought. Applying Section 27 of the Civil Procedure Act and the principle that costs follow the event, and associating herself with the decisions in Republic v Rosemary Wairimu Munene and Nelly Kalia Kilonzo, the court held that setting aside the trial court judgment also set aside its order that each party bear their own costs; the Appellant, as the successful party who had claimed costs in the Plaint, was entitled to costs of the lower court suit and of the Appeal as already awarded. The application was allowed, with liberty to file a Bill of Costs for taxation, but no order as to costs of the application. Dated and delivered virtually at Machakos on 12th March 2024.

Key legal issues

#
01

Entitlement to costs where the appellate court set aside the trial court judgment

Holding

Setting aside the trial court judgment also set aside its order that each party bear their own costs; the Appellant, being the successful party in the lower court, is entitled to costs of that suit and of the Appeal

Reasoning

The court noted that the appeal judgment set aside the trial court's judgment, which had directed each party to bear their own costs. Setting aside that judgment necessarily nullified the costs order. The Appellant had claimed costs in the Plaint. Section 27 of the Civil Procedure Act provides that costs follow the event, so the successful party is entitled to costs absent contrary reasons. The court associated itself with the authorities cited and held the Appellant entitled to costs of the lower court suit and the Appeal, permitting taxation.

p. 3

Legal principles established

#
  • Costs are discretionary and follow the event; a successful party is entitled to costs unless there are reasons not to award them

Court orders

#
  1. 1.The Chamber Summons application dated 15th June 2023 is allowed
  2. 2.The Appellant is entitled to costs in Machakos CMCC No. E52 of 2020 and in the Appeal, as already awarded
  3. 3.The Appellant is free to file his Bill of Costs in the Appeal to be subjected to taxation by the Taxing Officer
  4. 4.No order as to costs of the application

Authorities

#

Legislation

  • Civil Procedure ActSection 27 (and Section 27(1) as cited in Nelly Kalia Kilonzo)

Cases cited (2)

  • Republic vs Rosemary Wairimu Munene (exparte Applicant) Ihururu Dairy Farmers Cooperative Society Ltd
    (2014) eKLR
  • Nelly Kalia Kilonzo & 3 others v CIC General Insurance Limited & another
    [2021] eKLR
Jurisdiction invoked
Inherent jurisdiction of the High Court over costs; Section 27 of the Civil Procedure Act (Cap. 21)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mulwa v Kilonzo & 3 others (Environment and Land Appeal 39 of 2021) [2024] KEELC 1343 (KLR)", Case Analysis (2024). Chamber Summons Application dated 15th June, 2023 (arising from Machakos CMCC No. E52 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1343/eng@2024-03-12

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