Omariba & 3 others v Omwenga (Environment and Land Appeal E015 of 2024) [2025] KEELC 7789 (KLR)
The bottom line
#Kenyan courts can refuse to award legal costs to a winning party when the disputing parties are close family members.
What this practically means
#Executive summary
#Key legal issues
#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
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
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.
Whether the appellate court was entitled to interfere with the trial court's discretionary decision on costs
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
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.
Legal principles established
#- 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
#- 1.Appeal dismissed
- 2.No orders as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.