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ELCDismissedNot stated in the judgment as provided· [2025] KEELC 7789 (KLR)

Omariba & 3 others v Omwenga (Environment and Land Appeal E015 of 2024) [2025] KEELC 7789 (KLR)

Environment and Land Court
11 November 2025
1,657 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenyan courts can refuse to award legal costs to a winning party when the disputing parties are close family members.

What this practically means

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Executive summary

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The respondent sued the appellants, his nephews, claiming entitlement to half of Plot 19A Kegogi Market and seeking their eviction. The trial Magistrate, in a judgment delivered on 17 April 2024, held that the appellants lacked capacity to be sued as it was never demonstrated that they were legal representatives of their deceased father Alfayo Omariba, in whose name the plot was registered. Without going into the merits, she dismissed the suit as fatally defective but ordered each party to bear its own costs because they were close relatives. The appeal, which was solely against the costs order, was disposed of by written submissions. The court (Munyao Sila J) analysed Section 27 of the Civil Procedure Act, which vests discretion in the court on costs, subject to the principle that costs follow the event unless the court for good reason otherwise orders. Relying on the Supreme Court's decision in Rai v Rai and the Court of Appeal's guidance in United India Insurance v East African Underwriters on interference with discretionary decisions, the court held that the trial Magistrate had properly exercised her discretion: she gave reasons for departing from the general rule, and the close relationship between the parties was a genuine and valid consideration. The court also rejected the appellants' factual claims about settlement efforts and travel expenses. The appeal was dismissed with no orders as to costs, again in light of the parties' relationship.

Key legal issues

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01

Whether the trial Magistrate's order that each party bear its own costs was a proper exercise of discretion under Section 27 of the Civil Procedure Act

Holding

Yes. Costs are discretionary; although costs follow the event, the court may depart from that rule for good reason, and the close relationship of the parties was a valid reason

Reasoning

Section 27 confers discretion on the court, with the proviso that costs follow the event unless the court for good reason otherwise orders. The trial Magistrate departed from the general rule because the parties were close relatives - the appellants being nephews of the respondent. She gave reasons for the departure, which the law requires. The appellate court found no misdirection, misapprehension of facts or plainly wrong decision, and declined to interfere.

p. 4
02

Whether the appellate court was entitled to interfere with the trial court's discretionary decision on costs

Holding

No. The grounds of appeal disclosed no misdirection in law, misapprehension of facts, consideration of extraneous matters, omission of relevant considerations, or plainly wrong decision

Reasoning

Applying the principles in United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd, an appellate court interferes with discretion only on established grounds. The court found nothing in the record of a witness from Mombasa, noted the Nairobi-based witness testified virtually, and observed that even if the appellants' factual claims were true, the discretion had still been properly utilised.

p. 4

Legal principles established

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  • Costs of and incidental to all suits are in the discretion of the court, though costs follow the event unless the court for good reason otherwise orders
  • An appellate court will not interfere with a discretionary decision unless the judge misdirected himself in law, misapprehended the facts, took or failed to take account of relevant considerations, or the decision is plainly wrong
  • The relationship of the parties may be a material consideration justifying departure from the general rule that costs follow the event

Court orders

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  1. 1.Appeal dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure Act, Cap 21, Laws of KenyaSection 27(1) and (2)

Cases cited (3)

  • Rai & 3 others v Rai & 4 others (Petition 4 of 2012)
    [2014] KESC 31 (KLR) (4 March 2014) (Ruling)
  • United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd
    (1985) EA 898
  • Joseph Oduor Anode v Kenya Red Cross Society
    (Nairobi High Court Civil Suit No. 66 of 2009) [2012] KEHC 3607 (KLR) (28 June 2012) (Ruling)
On appeal from
Magistrates' Court
null
Jurisdiction invoked
First appeal to the Environment and Land Court against the costs order of the trial court; appeal on exercise of discretion under Section 27 of the Civil Procedure Act, Cap 21

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, "Omariba & 3 others v Omwenga (Environment and Land Appeal E015 of 2024) [2025] KEELC 7789 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7789/eng@2025-11-11

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