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ELCPartially AllowedNyandarua ELC Appeal No. 18 of 2024· [2026] KEELC 1068 (KLR)

Gachu v Kirathi & 3 others (Environment and Land Appeal E004 of 2024) [2026] KEELC 1068 (KLR)

Environment and Land Court
25 February 2026
1,962 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court set aside a costs order made without notice, ruling each party should bear its own appeal costs.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nyandarua (Mugo Kamau, J) delivered on 25 February 2026 on an application dated 1 October 2025 by Hannah Wanjiru Kirathi, the 1st Respondent in Nyandarua ELC Appeal No. 18 of 2024. She sought review, variation and/or setting aside of the orders of 21 May 2025 by which the Court, on the application of the Slip Rule under Section 100 of the Civil Procedure Act and on the basis that costs follow the event, awarded the Appellant costs of the Appeal and of the suit in the lower Court; in the alternative she sought leave to file a Notice of Appeal out of time. She contended that counsel handling the matter lacked instructions and the office file on 21/5/2025, that the suit was not scheduled for mention or hearing that day, and that costs were awarded without her knowledge or a formal application. The Appellant opposed the application as an abuse of process, relying on Section 100 and the principle that costs follow the event. After setting out the review jurisdiction under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010, and applying authorities including Republic v Public Procurement Administrative Review Board, Pancras T. Swai v Kenya Breweries, Sarder Mohamed v Charan Singh, Ajit Kumar Rath and Tokesi Mambili, the Court held that although the six-month delay was inordinate, the orders of 21/5/2025 were issued without notice that costs would be reviewed, and that incomplete and incoherent proceedings from the lower Court - for which neither party was to blame - made it unfair to compel the Respondents to pay costs. The Court vacated the costs orders of 21/5/2025, ordered each party to bear its own costs of the Appeal, made no orders as to costs of the Application, and warned counsel against attending Court without their files.

Key legal issues

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01

Whether the orders of 21/5/2025 awarding costs should be reviewed and set aside

Holding

The orders were vacated on the basis of sufficient reason: they were issued without notice that costs would be reviewed on that day, without a formal application, and against a backdrop of incomplete and incoherent proceedings from the lower Court for which neither party was to blame.

Reasoning

The Court accepted that the delay of about six months was inordinate, but found that the incomplete and incoherent lower Court proceedings - attributable to neither party - and the fact that the costs order issued without notice meant the Respondents ought not to have been compelled to pay costs. In the interest of fairness, the costs orders of 21/5/2025 were vacated and each party directed to bear its own costs.

p. 4
02

Scope of the Court's review jurisdiction under Section 80 of the Civil Procedure Act and Order 45 Rule 1

Holding

Review is available on discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason, without unreasonable delay; the ground of sufficient reason is a discretionary one.

Reasoning

Relying on authority, the Court reiterated that Section 80 confers an unfettered discretion while Order 45 Rule 1 restricts the grounds for review to three limbs. The expression 'any other sufficient reason' is limited to reasons analogous to those specified. Although the Applicant did not strictly demonstrate an error apparent on the face of the record, the Court exercised its discretion on the ground of sufficient reason arising from the circumstances of 21/5/2025.

p. 4
03

Conduct of counsel appearing without instructions or files

Holding

Counsel who appeared on 21/5/2025 without instructions or the file ought to have told the Court as much; counsel must always attend Court with their files and must inform clients of the Court's decisions.

Reasoning

The Court took judicial notice that Mr Gakenia habitually handled matters for the firm of Waichungo Martin & Co. Advocates and presumed he had instructions. It held that if he truly lacked instructions and the file, he should have said so, and that the Court could not be faulted for counsel's failure to inform the Applicant of the costs decision. Counsel were warned against attending Court unprepared.

p. 4

Legal principles established

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  • The grounds for review are restricted to discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason, and the application must be made without unreasonable delay.
  • Section 80 of the Civil Procedure Act confers an unfettered discretion on the Court to make such order as it thinks fit on review.
  • The expression 'any other sufficient reason' in the review rules means a reason sufficiently analogous to those specified in the rule.
  • The sins of the lower court ought not to be visited on any of the parties in a suit.
  • Counsel must attend Court with their files and inform their clients of the decisions or directions of the Court.

Court orders

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  1. 1.The orders of 21/5/2025 awarding costs to the Appellant were vacated
  2. 2.Each party to bear its own costs of the Appeal
  3. 3.No orders as to costs in respect of the Application dated 1/10/2025

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Section 100 (Slip Rule)
  • Civil Procedure Act (Cap 21)Section 80
  • Civil Procedure Rules, 2010Order 45 Rule 1
  • Civil Procedure Rules, 2010Order 44 Rule 1 (as referenced in Pancras T. Swai v Kenya Breweries Limited)

Cases cited (5)

  • Republic v Public Procurement Administrative Review Board & 2 others
    [2018] eKLR
  • Pancras T. Swai v Kenya Breweries Limited
    [2014] eKLR
  • Sarder Mohamed v. Charan Singh Nand Sing and Another
    (1959) EA 793
  • Ajit Kumar Rath v State of Orisa & Others
    9 Supreme Court Cases 596 at Page 608
  • Tokesi Mambili and others v Simion Litsanga
Jurisdiction invoked
Sections 80 and 100 of the Civil Procedure Act (Cap 21) and Order 45 Rule 1 of the Civil Procedure Rules, 2010 - review of the Court's own order of 21/5/2025

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, "Gachu v Kirathi & 3 others (Environment and Land Appeal E004 of 2024) [2026] KEELC 1068 (KLR)", Case Analysis (2026). Nyandarua ELC Appeal No. 18 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1068/eng@2026-02-25

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