Githii v Wachira (Environment and Land Appeal E017 of 2024) [2025] KEELC 8402 (KLR)

Environment and Land Court

1 December 2025

LMLucy N. Mbugua

714 words in judgment

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The bottom line

A Kenyan court refused to award legal costs in an adverse possession case because the jurisdiction question was unsettled when the ruling was made.

What this practically means

Executive summary

The respondent had sued in the magistrates' court (CMELC No. 4 of 2024) claiming parcel L.R/Laikipia/Kinamba/Block 1/1360 by adverse possession. The appellant raised a preliminary objection asserting the trial court lacked jurisdiction over adverse possession claims; on 26.8.2024 the trial court upheld the objection and directed each party to bear their own costs. The appellant appealed, limited to the costs decision, invoking Section 27 of the Civil Procedure Act and contending costs should have followed the event. The appeal was canvassed by written submissions; the appellant relied on the Rai decision, while the respondent relied on Garum Investment Limited v Aguthi Enterprises, arguing the trial court properly weighed the minimal procedural steps and the need to avoid punitive outcomes. The court noted the trial judge gave no reasons on costs, and that under Section 78 of the Civil Procedure Act it could remit the matter for reasons or determine it finally. However, since the jurisdictional question was only settled by the Court of Appeal in Sugawara v Kiruti on 11.10.2024 - after the ruling under appeal - it would be unjust to burden either party with costs. Applying the Supreme Court's jurisprudence in Rai (as cited in Baridi Felix Mbevo) that costs follow the event but not invariable so, the court found no reason to vary the ruling, dismissed the appeal, and ordered each party to bear their own costs.

Key legal issues

Whether the appellate court should vary the trial court's decision not to award costs to the appellant

Holding

The appeal was dismissed; the trial court's costs decision was left undisturbed because the jurisdictional question underlying the suit was unsettled when the ruling was delivered

Reasoning

The trial court did not give reasons on costs, and the court could have remanded under Section 78 of the Civil Procedure Act or determined the matter finally. However, the question of magistrates' courts' jurisdiction in adverse possession claims was only settled by the Court of Appeal in Sugawara v Kiruti on 11.10.2024, after the trial ruling of 26.8.2024. It would therefore be unjust to burden any party with costs, and no reason existed to vary the ruling.

p. 2

Legal principles established

Costs follow the event but this is not an invariable rule; award of costs is a matter of judicial discretion

Court orders

1.Appeal dismissed
2.Each party shall bear their own costs of the suit

Authorities

Legislation

Civil Procedure ActSection 27
Civil Procedure ActSection 78

Cases cited (5)

Rai & 3 Others v Rai & 4 Others (Petition 4 of 2012)
(2014) KESC 31 (KLR)
Garum Investment Limited & Another v Aguthi Enterprises Limited; Hussein Ibrahim Nuni
(2020) KEELC 3471 (KLR)
Sugawara v Kiruti & 3 others
(Civil Appeal E141 of 2022) [2024] KECA 1417 (KLR)
Baridi Felix Mbevo v Musee Mati 82 & Others
(2021) eKLR
Jasbir Singh Rai & Others
S.C. Petition 4 of 2012 (2014) EKLR

On appeal from: Magistrates' Court (CMELC); CMELC NO 4 OF 2024
Jurisdiction invoked: Section 78 of the Civil Procedure Act (appellate powers over costs rulings)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Githii v Wachira (Environment and Land Appeal E017 of 2024) [2025] KEELC 8402 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8402/eng@2025-12-01

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