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ELCOtherNot stated in the judgment· [2025] KEELC 4203 (KLR)

Josphat v Mwangi & 3 others (Environment and Land Appeal E040 of 2024) [2025] KEELC 4203 (KLR)

Not expressly stated in the judgment (delivered at Murang'a)
3 June 2025
MGM.N. Gicheru
540 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A Kenyan court refused costs to a respondent who never knew about an appeal until after it was withdrawn—proof and service matter.

What this practically means

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Executive summary

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This short ruling by M.N. Gicheru, Judge, decided a single question: whether the 1st Respondent was entitled to costs after the Appellant orally applied on 5/3/2025 to withdraw an appeal. The Appellant's counsel filed an affidavit explaining that the memorandum of appeal filed on 9/9/2024 was never served on the Respondents; that the notice of withdrawal dated 16/12/2024 was filed when none of the Respondents had been mapped into the e-filing system; and that the 1st Respondent's counsel only became aware of the appeal after the court's email mention notice, by which time withdrawal was complete. The 1st Respondent's counsel, in submissions, claimed he had taken instructions to defend the appeal and made one court appearance, and sought costs. The court held that counsel could not explain when he took instructions given he was neither served nor mapped into the e-filing system; that he filed no material to counter the credible affidavit evidence that he learned of the appeal only upon being mapped on 21/2/2025, two months after the withdrawal notice was filed; and that instructions could not have been taken on an appeal due for withdrawal. The court ordered that there be no costs to the Respondents. The ruling was delivered virtually at Murang'a on 3/6/2025.

Key legal issues

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01

Entitlement to costs upon withdrawal of an appeal

Holding

Neither the 1st Respondent nor the other Respondents were entitled to costs because counsel was unaware of the appeal until after the notice of withdrawal was filed

Reasoning

The court weighed the Appellant counsel's affidavit explaining the timeline of filing and withdrawal against the 1st Respondent counsel's bare claim of having taken instructions. Counsel could not explain when he took instructions if he was unserved and unmapped on the e-filing portal. The court found his awareness arose only on 21-2-2025, by which time the withdrawal notice had been on record for two months.

p. 2
02

Evidentiary burden on a party claiming costs

Holding

The party claiming costs must evidence its claim; the 1st Respondent filed no material to counter the Appellant counsel's affidavit

Reasoning

The court contrasted the Appellant counsel's sworn affidavit explaining the concatenation of events with the 1st Respondent counsel's failure to file any material controverting it. Unsupported assertions of having taken instructions to defend the appeal could not stand against credible and convincing evidence that counsel was unaware of the appeal until mapped on 21-2-2025.

p. 2

Legal principles established

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  • A respondent who was never served with the memorandum of appeal and was unaware of the appeal until after it was withdrawn is not entitled to costs of the withdrawn appeal

Court orders

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  1. 1.There will be no costs to the Respondents
Jurisdiction invoked
Not stated in the judgment

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, "Josphat v Mwangi & 3 others (Environment and Land Appeal E040 of 2024) [2025] KEELC 4203 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4203/eng@2025-06-03

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