Kongo’acheke Clan Community Based Organization (C.B.O. Suing Through Henry Mwenda, the Chairman) v Ngera & another (Environment & Land Case E003 of 2023) [2024] KEELC 3790 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether costs are payable where parties consent to mark the suit as settled
The consent conceded prayer No (1) of the plaint, so the plaintiffs succeeded; the general rule that costs follow the event applies and the 1st defendant must pay the plaintiffs' costs.
The consent of 6.3.2024 bound the 1st defendant not to construct a mortuary, funeral home, morgue or incinerator on the suit parcels, which amounted to conceding the claim. Section 27 of the Civil Procedure Act gives the court full discretion over costs, but departure from the general rule requires good reasons. The court examined the parties' conduct from the pleadings: the 1st defendant ignored the plaintiffs' pleas, withheld the EIA report, never engaged the plaintiffs in ADR, and only proposed settlement on the eve of the hearing. No omission, misconduct or neglect was attributable to the plaintiffs, who pursued their constitutional environmental rights without malice.
Whether the public interest character of the litigation justifies denying costs to the successful plaintiffs
No; the public interest nature of the suit does not displace the general rule on these facts.
The 1st defendant relied on Okoiti, Haraf Traders and Biowatch to urge that public interest litigants should not be awarded costs. The court accepted the framework of considerations - conduct, motivation, stage and manner of termination - but found that the plaintiffs enforced constitutional environmental rights, were not motivated by ill will or ulterior motives, and the 1st defendant's infringement and late settlement proposal outweighed the public interest argument.
Legal principles established
#- Costs follow the event, and a court may only depart from that rule for good reasons such as the conduct of the parties before, during and after litigation.
- A defendant who infringes the plaintiffs' rights, defends the suit and only settles on the eve of trial should ordinarily bear the costs.
Court orders
#- 1.The suit is marked as settled
- 2.Costs of the suit are awarded to the plaintiffs, to be borne by the 1st defendant
- Jurisdiction invoked
- Section 27 of the Civil Procedure Act (costs following the event); Article 159 of the Constitution referenced on ADR
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kongo’acheke Clan Community Based Organization (C.B.O. Suing Through Henry Mwenda, the Chairman) v Ngera & another (Environment & Land Case E003 of 2023) [2024] KEELC 3790 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3790/eng@2024-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.