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ELCAllowedCivil Appeal dated 20th May, 2024 (Memo of Appeal dated 20th May, 2024)· [2025] KEELC 1072 (KLR)

Mwangi & another v Kamau & another (Environment and Land Appeal E020 of 2024) [2025] KEELC 1072 (KLR)

High Court of Kenya (Environment and Land jurisdiction, first appeal)
11 February 2025
LGL. Gacheru
2,610 words in judgment
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The bottom line

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The High Court confirmed that in Kenya, winning parties get their legal costs paid unless a court finds exceptional reasons to deny them.

What this practically means

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Executive summary

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The 1st Respondent, as widow of the late Dan Mwangi Sila Kabugi, sued before the trial court seeking cancellation of the 2nd Appellant's title over Plot 1193/38B, alleging the property belonged to her late husband's estate and was fraudulently transferred by the 1st Appellant who forged the deceased's signature. The 1st and 3rd Defendants raised preliminary objections on limitation and on the Plaintiff's lack of locus standi for want of letters of administration. On 24th April 2024 the trial court upheld the objections and struck out the suit with no order as to costs. The Appellants, though welcoming the striking out, appealed solely on the costs denial, invoking Section 27 of the Civil Procedure Act and authorities holding that costs follow the event. The 1st Respondent countered that striking out without a hearing is drastic and that the trial court's implied finding that fraud needed trial justified each party bearing its own costs. L. Gacheru J, exercising first-appeal jurisdiction, reiterated the duty to re-evaluate evidence afresh. The court found the Appellants were successful litigants who filed pleadings and participated in the proceedings, that no misconduct or fault was found against them, and that no exceptional circumstances justified denying costs. The trial court's costs finding was set aside, the appeal was allowed in terms of prayers (1) and (2), and the Appellants were awarded costs of both the suit and the appeal under Section 27.

Key legal issues

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01

Whether the trial court erred in striking out the suit with no orders as to costs

Holding

The trial court erred; the Appellants, as successful parties, were entitled to costs of the struck-out suit since no exceptional circumstances or misconduct on their part were found.

Reasoning

Section 27 of the Civil Procedure Act directs that costs follow the event unless the court for good reason otherwise directs. The court found the trial court made no finding of misconduct or fault against the Appellants regarding the alleged fraudulent transfer; the trial court only held the question of fraud required trial. The Appellants were dragged to court, filed pleadings and participated in the application leading to striking out, hence were deserving of costs.

p. 5
02

Duty of a first appellate court

Holding

A first appellate court must subject the whole evidence to fresh and exhaustive scrutiny and reach its own independent conclusions.

Reasoning

The court invoked settled principle from Selle v Associated Motor Boat Co Ltd and Peter M. Kariuki v Attorney General that a first appeal is by way of retrial: the appellate court reconsiders and re-evaluates the evidence and draws its own conclusions while making due allowance for not having seen or heard the witnesses first hand.

p. 3

Legal principles established

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  • Costs follow the event and are awarded to the successful litigant unless exceptional circumstances or conduct warrant otherwise.
  • A first appellate court must re-evaluate the evidence before the trial court and arrive at its own independent conclusions.

Court orders

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  1. 1.Appeal allowed in terms of prayers (1) and (2) of the Memorandum of Appeal dated 20th May, 2024
  2. 2.The trial court's finding that the Appellants did not deserve costs of the suit is upset/set aside
  3. 3.Appellants awarded costs of the suit before the trial court
  4. 4.Appellants awarded costs of the Appeal

Authorities

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Legislation

  • Civil Procedure ActSection 27(1)
  • Civil Procedure ActSection 79B
  • Limitation of Actions Actnot specified
  • Civil Procedure RulesOrder 2 Rule 15(1)
  • Constitution of KenyaArticle 159(2)(c)

Cases cited (14)

  • Kiteme Vs Kimanthi
    (Civil Appeal No. 61 of 2019) [2023] KEHC 605 (KLR)
  • Gakio Vs Kurgat & 2 Others
    (ELC Case 155 of 2016) [2024] KEELC 6231 (KLR)
  • Devsurinder Kumar Bij Vs Agility Logistics Ltd
    [2014] eKLR
  • Grace Wairimu Gakio Vs Emily Chelgat Kargat & 2 others
    [2019] eKLR
  • Civicon Limited Vs Kivumatt Limited & 2 others
    (2015) eKLR
  • Justus Tureti Obara Vs Peter Koipetai Nengisoi
    (2014) eKLR
  • Party of Independent Candidates Vs Mutula Kilonzo & 2 others
    (2013) eKLR; HC EP No. 6 of 2013
  • Republic Vs Rosemary Wairimu Munene (Ex parte Applicant) Vs Ihururu Dairy Farmers Cooperative Society Ltd
    Judicial Review Application No 6 of 2014
  • Cecilia Karuru Ngayu Vs Barclays Bank of Kenya & Another
    [2016] eKLR
  • Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa)
    (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR)
  • Peter M. Kariuki vs Attorney General
    [2014] eKLR
  • Selle & another v Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Haraf Traders Limited v Narok County Government
    [2022] eKLR
  • Orix (K) Limited vs Paul Kabeu & 2 others
    [2014] eKLR
On appeal from
Trial Court (not named in judgment)
suit over Plot number 1193/38B, Plaint dated 26th July 2023
Jurisdiction invoked
Appellate jurisdiction over a first appeal from the trial court; appeal admitted under Section 79B of the Civil Procedure Act

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, "Mwangi & another v Kamau & another (Environment and Land Appeal E020 of 2024) [2025] KEELC 1072 (KLR)", Case Analysis (2025). Civil Appeal dated 20th May, 2024 (Memo of Appeal dated 20th May, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1072/eng@2025-02-11

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