Gachu v Kirathi & 3 others (Environment and Land Appeal E004 of 2024) [2026] KEELC 1068 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the orders of 21/5/2025 awarding costs should be reviewed and set aside
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.
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.
Scope of the Court's review jurisdiction under Section 80 of the Civil Procedure Act and Order 45 Rule 1
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.
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.
Conduct of counsel appearing without instructions or files
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.
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.
Legal principles established
#- 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
#- 1.The orders of 21/5/2025 awarding costs to the Appellant were vacated
- 2.Each party to bear its own costs of the Appeal
- 3.No orders as to costs in respect of the Application dated 1/10/2025
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.