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ELCDismissedKajiado CM ELC Appeal (arising from Kajiado CM ELC No. 66 of 2007)· [2026] KEELC 1243 (KLR)

Maina v Gichia & another (Environment and Land Appeal E003 of 2024) [2026] KEELC 1243 (KLR)

Environment and Land Court
26 February 2026
MMM.D. Mwangi
3,613 words in judgment
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The bottom line

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The Environment and Land Court in Kajiado dismissed a challenge to a costs award, confirming that in Kenya the winning party in a land dispute is normally paid costs.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Kajiado against the order on costs in Kajiado CM ELC No. 66 of 2007, in which the Respondent sued the Appellant and her husband over Business Plot No. 121 at Olekasasi Trading Centre, Ongata Rongai. On 1 February 2024, Hon. R. A. Oganyo, CM, allowed the Respondent's claim, holding it proved on a balance of probabilities, and awarded costs to the Respondent on the principle that costs follow the event, citing Cecilia Karuru Ngayu v Barclays Bank of Kenya. The Appellant, who had counterclaimed over Plot 893 allegedly allocated to her by Ol Kejuado County Council, appealed solely against the award of costs. She argued the dispute was caused by the Interested Party's double allocation of the same parcel under different plot numbers, that a court-ordered survey report resolved the dispute at the eleventh hour, and that it would be unjust to penalise her for the local authority's error, relying on Norman Main v Adam Ferguson. The Respondent maintained that costs follow the event and that the Appellant trespassed despite the Council's confirmation of his ownership. M.D. Mwangi, J, re-evaluated the record as first appellate court and framed one issue: whether the appeal merited variation of the costs order. Applying Section 27 of the Civil Procedure Act and the jurisprudence in Rai v Rai, Farah Awad Gullet, and Mbogo v Shah, the court held that the magistrate exercised her discretion judicially; the survey evidence did not constitute good reason to deny a successful party costs, and costs could not be shifted to the Interested Party absent a finding of liability against it. The appeal was dismissed, the trial court's costs order upheld, and the Respondent awarded the costs of the appeal.

Key legal issues

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01

Whether the trial magistrate's award of costs should be varied on appeal

Holding

The appeal fails; the magistrate exercised discretion judicially in awarding costs to the successful party

Reasoning

The trial court made a definitive finding that the Respondent proved his claim over Plot 121. Costs followed the event as the statutory default. The appellant failed to show misdirection, wrong principles, or a plainly wrong decision. The emergence of survey evidence during litigation is not 'good reason' to deny a successful party costs, and costs could not be shifted to the Interested Party absent a finding of liability.

p. 7
02

Whether the Interested Party should bear the costs as the cause of the dispute

Holding

No - costs could not be shifted absent a trial court finding of liability against the Interested Party

Reasoning

The trial court made no finding of liability against the Interested Party. Without a specific determination that the Interested Party's conduct was the proximate and legal cause of loss, an appellate court cannot shift the burden of costs.

p. 7

Legal principles established

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  • Costs follow the event under Section 27 of the Civil Procedure Act unless the court, for good reason, orders otherwise; a successful litigant compelled to vindicate proprietary rights is entitled to costs even where the dispute turns on survey evidence clarified during proceedings.
  • An appellate court will not interfere with a discretionary award unless the court below acted on wrong principles, failed to consider relevant factors, or reached a plainly wrong decision occasioning injustice.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The order of the Chief Magistrate awarding costs of the suit to the Respondent is upheld
  3. 3.The Respondent shall have the costs of this appeal against the Appellant
On appeal from
Chief Magistrate's Court, Kajiado (Environment and Land Court)
Kajiado CM ELC No. 66 of 2007
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court (Environment and Land Court) appeal

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, "Maina v Gichia & another (Environment and Land Appeal E003 of 2024) [2026] KEELC 1243 (KLR)", Case Analysis (2026). Kajiado CM ELC Appeal (arising from Kajiado CM ELC No. 66 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1243/eng@2026-02-26

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