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ELCAllowed· [2025] KEELC 3583 (KLR)

Mugacia & 4 others v Makindi Banks Limited (Environment & Land Case 183 of 2017) [2025] KEELC 3583 (KLR)

Environment and Land Court
6 May 2025
450 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that costs awarded against multiple parties must be shared equally, not extracted from one person alone.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Murang'a (M.N. Gicheru, J) determined an unopposed notice of motion dated 18 November 2024 brought by the 1st Plaintiff under Order 40 rule 1(a) and Order 51 rule 1 of the Civil Procedure Rules and Sections 1A, 1B, 3A, 27 and 63(1) of the Civil Procedure Act. The background was that the Defendant had been awarded costs of Kshs. 378,790 against all five Plaintiffs jointly and severally. The 1st Plaintiff, an 83-year-old man described as the ring leader of the suit, complained that the Defendant had openly declared an intention to recover all costs from him alone to teach him a lesson, had pursued only him in execution, and had proclaimed his property, including two cows that were his only source of income. The motion sought that the costs be shared pro rata among all five Plaintiffs and that the Plaintiffs, described as persons of straw, be given reasonable time to settle the costs. The motion was served but unopposed, with no replying affidavit or grounds of opposition filed. The court found the motion meritorious, holding it unfair and unjust to execute against one plaintiff when the decree binds all of them. It directed payment of the decretal amount on a pro rata basis of Kshs. 75,758 per plaintiff, payable within nine months. The motion was allowed in terms of prayers 3 and 4, with costs in the cause. Judgment delivered virtually on 6 May 2025.

Key legal issues

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01

Apportionment of jointly and severally awarded costs among multiple plaintiffs

Holding

Each of the five Plaintiffs must bear an equal pro rata share of the decretal costs rather than the 1st Plaintiff bearing the entire burden

Reasoning

The court found the costs of Kshs. 378,790 were awarded against all five Plaintiffs jointly and severally. The Defendant had targeted only the 1st Plaintiff for execution, proclaiming his property, including two cows that were the sole income of the 83-year-old applicant. The court held execution against one plaintiff when the decree binds all of them is neither fair nor just, and directed equal apportionment at Kshs. 75,758 per plaintiff with nine months to pay.

p. 2
02

Reasonable time to settle decretal sum

Holding

The court granted the Plaintiffs nine months within which to settle the decretal sum

Reasoning

The applicant pleaded that the Plaintiffs were men and women of straw and sought reasonable and affordable time to settle the costs. The unopposed motion persuaded the court that an instalment window was appropriate. The court accordingly directed that the decretal sum be paid within nine months, effectively staying execution against any single plaintiff's property in the interim.

p. 2

Legal principles established

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  • It is not fair or just to execute against one co-debtor when a decree is awarded against several parties jointly and severally; execution should be apportioned pro rata.

Court orders

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  1. 1.The decretal amount be paid on a pro rata basis with each Plaintiff paying Kshs. 75,758
  2. 2.The decretal sum be paid within a period of 9 months
  3. 3.Costs in the cause
Jurisdiction invoked
Orders 40 rule 1(a) and 51 rule 1 of the Civil Procedure Rules; Sections 1A, 1B, 3A, 27 and 63(1) 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, "Mugacia & 4 others v Makindi Banks Limited (Environment & Land Case 183 of 2017) [2025] KEELC 3583 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3583/eng@2025-05-06

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