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ELCAllowedNot stated in the judgment as provided (memorandum of appeal dated 14/08/2022)

Onyango v Ofula (Environment and Land Appeal E027 of 2022) [2024] KEELC 4493 (KLR)

Environment and Land Court of Kenya
6 June 2024
AKA. Y. Koross
2,374 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Siaya court confirmed that whoever wins a case should get costs, unless the judge explains in writing why not.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Siaya, heard by A. Y. Koross, J, against a single limb of a trial court ruling dated 14/07/2022. In the subordinate court the respondent, as plaintiff, had sued the appellant for trespass on land parcel Uholo/Rambula/983, seeking a permanent injunction, fixing of the boundary with Uholo/Rambula/178, and costs. The appellant defended on the ground that, under Section 18(2) of the Land Registration Act, the trial court lacked jurisdiction over boundary issues, which fell to the land registrar. After the plaintiff's hearing had commenced, the trial magistrate upheld the objection, declined jurisdiction and 'downed her tools', but ordered each party to bear their own costs. The appellant appealed only on costs, contending that as the successful party he should have been awarded costs of the suit. The appeal was canvassed by written submissions, both parties relying on Section 27(1) of the Civil Procedure Act. The court condensed the grounds into a single issue: whether the trial magistrate erred in failing to award the appellant costs. Relying on Mbogo v Shah, Jasbir Singh Rai, Sonko and Joseph Oduor Anode, the court held that costs follow the event, that the event materialized when the suit was concluded on the appellant's jurisdictional objection, and that departing from the rule without reasons is an arbitrary exercise of discretion. Allowing the appeal, the court partly substituted the impugned ruling with an order awarding the appellant the costs of the suit, and also awarded him the costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned trial magistrate erred in law in not exercising her discretion properly by failing to award the appellant costs of the suit
  2. 2.What orders should this court issue, including an order as to costs

Key legal issues

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01

Whether the trial magistrate properly exercised her discretion in ordering each party to bear their own costs after declining jurisdiction

Holding

The discretion was exercised arbitrarily because no reasons were given for departing from the rule that costs follow the event; the appellant, as the successful party, was entitled to costs.

Reasoning

Under Section 27(1) of the Civil Procedure Act, costs are discretionary but shall follow the event unless the court for good reason otherwise orders. The trial court declined jurisdiction at the appellant's instigation after hearing had commenced, so the event materialized and the appellant was successful. The ruling gave no reasons for denying him costs. Following Jasbir Singh Rai and Joseph Oduor Anode, a departure from the general rule without patent reasons is an arbitrary exercise of discretion. No special circumstances justified denial of costs.

p. 4

Legal principles established

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  • Costs follow the event and a court departing from that rule must give reasons; failure to give reasons amounts to an arbitrary exercise of discretion.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The impugned ruling dated 14/07/2022 is partly substituted with an order awarding the appellant costs of the suit
  3. 3.The appellant, being the successful party, is awarded the costs of this appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AK
majority

Wrote the judgment

On appeal from
Chief Magistrate's Court / trial court (not specified precisely in judgment)
Suit over land parcel no. Uholo/Rambula/983 (number not stated)
Jurisdiction invoked
First appeal under Order 42 Rule 32 of the Civil Procedure Rules

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, and for the reasons stated above, the result is that the appeal is allowed and the impugned ruling dated 14/07/2022 is partly substituted with an order awarding the appellant costs of the suit.
p. 5Final orders - appeal allowed and costs substituted
Since costs follow the event and being the successful party, the appellant is awarded the costs of this appeal.
p. 5Costs of the appeal
Even if in the exercise of discretion the court has absolute and unfettered discretion to award or dissuade from awarding costs, the discretion must be exercised judicially by evidence, reason, and justice and not whimsically or arbitrarily.
p. 4Judicial exercise of discretion on costs
Evidently from Section 27 (1) of the Civil Procedure Act and binding decisions, it is settled law that costs follow the event, and it is only in the circumstances of good reasons that a judicial oficer or judge as the case may be, can depart from the rule.
p. 4Costs follow the event under Section 27(1)

Issues in the judgment

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minor

The judgment refers to a ruling rendered on 10/03/2023 by the trial magistrate on the interlocutory motion, but the hearing and the impugned ruling are dated 7/7/2022 and 14/07/2022, suggesting a chronological inconsistency in the dates.

minor

The judgment states the trial magistrate who issued the 10/03/2023 ruling was male ('he had satisfied himself') while the magistrate who delivered the 14/07/2022 ruling is referred to as female ('she lacked jurisdiction'), without explanation of the change of magistrate.

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, "Onyango v Ofula (Environment and Land Appeal E027 of 2022) [2024] KEELC 4493 (KLR)", Case Analysis (2024). Not stated in the judgment as provided (memorandum of appeal dated 14/08/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4493/eng@2024-06-06

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