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ELCPartially AllowedNot stated in judgment (plaint dated 27th May 2009)· [2025] KEELC 5593 (KLR)

Ethics and Anti-Corruption Commission v Kivisi & 2 others (Environment and Land Case 596 of 2014) [2025] KEELC 5593 (KLR)

Environment and Land Court
29 July 2025
DOD. O. Ohungo
1,139 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 parties who settle by consent judgment usually split their own legal costs, because a negotiated outcome has no clear winner or loser.

What this practically means

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Executive summary

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This is a costs ruling following a consent judgment in a land dispute over L.R. Number Kakamega Town Block III/274. On 12th June 2025 the parties recorded a consent by which judgment was entered against the First and Third Defendants in terms of prayers (a) to (d) of the plaint dated 27th May 2009, comprising declarations that the alienation of the suit property by the Second Defendant and its registration in favour of the First Defendant were irregular, fraudulent and illegal and null and void; an order directing the Land Registrar, Kakamega to rectify the register by cancelling the Certificate of Lease and related entries; and a permanent injunction restraining the First Defendant from dealing with the property other than by surrendering it to the Government of Kenya. Costs were not agreed, and the court heard submissions on 26th June 2025. Counsel for the First and Third Defendants, Mr Ondieki, sought an order that each party bear own costs under Section 27 of the Civil Procedure Act, relying on Robric Limited v Kobil Petroleum Limited and arguing that no party had lost, and that the government had already repossessed the property. Counsel for the Plaintiff, Ms Omari, contended that costs follow the event and that the Defendants conceded only at judgment stage. Ohungo J held that while a decree existed in the Plaintiff's favour, the consent was a collaborative outcome in which neither party could claim certain success, and that the national government's unilateral eviction of the Defendants and repossession of the property pending suit significantly influenced the consent. The court ordered that each party bear its own costs. Judgment dated and delivered at Nyamira on 29th July 2025.

Key legal issues

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01

Whether each party should bear own costs where judgment is entered by consent

Holding

Each party to bear own costs; a consent judgment is a collaborative outcome with no clear winner, and the unilateral government repossession of the suit property influenced the consent.

Reasoning

Section 27 of the Civil Procedure Act makes costs discretionary, with costs following the event unless the court for good reason orders otherwise. Here the decree arose from the parties' own collaborative consent, not a considered judgment, so no party could claim certain success. The national government's eviction of the defendants and repossession of the property pending suit also significantly motivated the consent, justifying departure from the general rule.

p. 3

Legal principles established

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  • Costs are at the discretion of the court and generally follow the event, but discretion must be exercised judiciously and may be departed from for good reason.
  • Where a case ends in a consent judgment, there are no clear winners or losers and the court may order each party to bear own costs.

Court orders

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  1. 1.Consent judgment entered against the First and Third Defendants in terms of prayers (a) to (d) of the plaint dated 27th May 2009 (declarations of irregular, fraudulent and illegal alienation and registration; rectification of the register; permanent injunction)
  2. 2.Each party to bear own costs of the case

Authorities

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Legislation

  • Civil Procedure ActSection 27

Cases cited (1)

  • Robric Limited & another v Kobil Petroleum Limited & another
    [2018] eKLR
Jurisdiction invoked
Costs jurisdiction under Section 27 of the Civil Procedure Act following consent judgment in the pending suit

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, "Ethics and Anti-Corruption Commission v Kivisi & 2 others (Environment and Land Case 596 of 2014) [2025] KEELC 5593 (KLR)", Case Analysis (2025). Not stated in judgment (plaint dated 27th May 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5593/eng@2025-07-29

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