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ELCOtherPetition dated 07/11/2022 (Bungoma ELC)· [2025] KEELC 4230 (KLR)

Nabwana (Suing as the Personal Representative of the Estate of Pascal Nabwana Wakoli) v County Government of Bungoma & 3 others (Constitutional Petition E007 of 2022) [2025] KEELC 4230 (KLR)

Environment and Land Court
21 May 2025
ECE.C. Cherono
1,876 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court let a landowner withdraw a constitutional petition without paying the other side's costs, because the respondents themselves delayed the case.

What this practically means

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Executive summary

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The petitioner, suing in respect of the estate of Pascal Nabwana Wakoli (deceased), filed a constitutional petition on 07/11/2022 against four respondents and the National Land Commission (interested party) seeking declarations that the proprietary interest in the land on which Kimilili B Market stands vested in the petitioner, that its compulsory acquisition without consent or compensation violated Section 75 of the Independence Constitution and Article 40 of the 2010 Constitution, plus mandamus for mesne profits, an injunction/eviction of the 1st respondent, and an order for amendment of the registry index map. Only the 1st respondent filed a replying affidavit; the 2nd-4th respondents and the interested party entered appearance but filed no responses. At pre-trial conference the petitioner sought to withdraw the entire petition, aiming to spare the deceased's estate protracted litigation given the cause of action arose in 1974. Respondents and the interested party consented to withdrawal but claimed costs. Applying Rule 27 and Rule 26 of the Mutunga Rules and Section 27 of the Civil Procedure Act, and the Supreme Court's guidance in DPP v Michael Sistu Mwaura Kamau (citing Jasbir Singh Rai) that costs follow the event subject to judicial discretion, the court found the respondents' failure to file responses or submissions supporting their costs claim fatal to their claim, and that access-to-justice principles under Article 48 required each party to bear their own costs. The petition was withdrawn with each party bearing their own costs; no substantive relief was determined.

Key legal issues

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Whether the respondents were entitled to costs notwithstanding the withdrawal of the petition

Holding

Each party to bear their own costs, given respondents' own inaction caused delay and access-to-justice considerations under Article 48 and Rule 26(2) of the Mutunga Rules

Reasoning

The court held costs are discretionary and the party seeking them must give cogent reasons. The 2nd-4th respondents and the interested party entered appearance but never filed responses, delaying the petition, and filed no submissions supporting their costs claim. To give effect to Article 48 and Rule 26(2), each party was to bear their own costs.

p. 4

Legal principles established

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  • Award of costs is a judicial discretion; a party seeking costs must lay a cogent basis, and in withdrawn constitutional petitions courts may order each party to bear their own costs to give effect to access to justice under Article 48

Court orders

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  1. 1.Leave granted for withdrawal of the petition
  2. 2.Each party to bear their own costs of the withdrawn petition
Jurisdiction invoked
Article 165(2) Constitution / Mutunga Rules (petitions under Articles 40 and 48)

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, "Nabwana (Suing as the Personal Representative of the Estate of Pascal Nabwana Wakoli) v County Government of Bungoma & 3 others (Constitutional Petition E007 of 2022) [2025] KEELC 4230 (KLR)", Case Analysis (2025). Petition dated 07/11/2022 (Bungoma ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4230/eng@2025-05-21

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