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ELCOtherNot stated in judgment· [2024] KEELC 1430 (KLR)

County Government of Kakamega v Vaghela & another (Environment & Land Case E034 of 2022) [2024] KEELC 1430 (KLR)

Environment and Land Court of Kenya
14 March 2024
DOD. O. Ohungo
847 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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When a Kenyan land suit is withdrawn, the winning defendant still gets costs unless the plaintiff shows a genuinely good reason otherwise.

What this practically means

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Executive summary

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The Plaintiff filed suit on May 13, 2022 seeking forfeiture of the lease over land title number Kakamega/Municipality/Block I/655 on account of non-development. The Defendants entered appearance and filed a defence. By consent, the suit was withdrawn on May 9, 2023, but the parties could not agree on costs: the Plaintiff sought that each party bear its own costs, while the Defendants sought costs of the suit. The court framed a single issue: whether the Defendants should be awarded costs. Starting from section 27(1) of the Civil Procedure Act, the court held that costs follow the event and should ordinarily go to the successful party absent good reason to the contrary. The Defendants were successful parties because the claim against them was withdrawn. The Plaintiff's assertion that the Defendants hurriedly developed the property during the suit, based on trial bundles, was rejected because those bundles were never produced in evidence and tested through oral testimony, and there was no basis to conclude the suit was withdrawn to defeat development. The public-interest argument that costs would be paid out of public funds also failed: the Plaintiff was a litigant like any other and this was ordinary civil litigation, not public interest litigation. No good reason having been advanced to deprive the Defendants of costs, the court awarded them the costs of the suit. Judgment was delivered at Kakamega on March 14, 2024 by D. O. Ohungo, Judge.

Key legal issues

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01

Whether the Defendants should be awarded costs of the suit withdrawn by consent

Holding

The Defendants, as successful parties on withdrawal of the claim, were awarded costs; no good reason was advanced to depart from the rule that costs follow the event.

Reasoning

Section 27(1) of the Civil Procedure Act gives the court discretion over costs, with the proviso that costs follow the event unless the court for good reason orders otherwise. The claim against the Defendants was withdrawn, making them successful parties. The Plaintiff's contention that it withdrew because the Defendants hurriedly developed the suit property rested on trial bundles never produced in evidence. The public-interest argument about public funds failed because this was an ordinary civil suit and the Plaintiff is a litigant like any other.

p. 2

Legal principles established

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  • Costs follow the event and should ordinarily be awarded to the successful party unless good reasons warrant depriving that party of costs
  • Trial bundles not produced in evidence and tested through oral testimony are of little aid to the court
  • A public entity litigating an ordinary civil suit is a litigant like any other and the public-funds argument does not displace costs liability

Court orders

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  1. 1.The Defendants are awarded costs of this suit

Authorities

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Legislation

  • Civil Procedure Actsection 27(1)

Cases cited (5)

  • Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others
    [2014] eKLR
  • Haraf Traders Limited v Narok County Government
    [2022] eKLR
  • Amoni Thomas Amfry & another v Minister for Lands & another & Mohamed Swazuri & 8 others
    [2013] eKLR
  • Cecilia Karuru Ngayu v Barclays Bank of Kenya & another
    [2016] eKLR
  • David Kiptum Korir v Kenya Commercial Bank & another
    [2021] eKLR
Jurisdiction invoked
Inherent jurisdiction on costs under section 27 of the Civil Procedure Act following consented withdrawal of the suit

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, "County Government of Kakamega v Vaghela & another (Environment & Land Case E034 of 2022) [2024] KEELC 1430 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1430/eng@2024-03-14

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