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ELCAllowedNot stated in the judgment· [2026] KEELC 1356 (KLR)

Bandari v Muye & 4 others (Environment and Land Case E105 of 2022) [2026] KEELC 1356 (KLR)

Environment and Land Court
2 March 2026
3,299 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Kenya's Environment and Land Court allowed defendants to recover their legal costs after a withdrawn land suit, ruling a false settlement claim denied them costs unfairly.

What this practically means

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Executive summary

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The 1st, 2nd and 4th Defendants applied by notice of motion dated 16th October 2025 for review of the order of 11th November 2024, by which the suit was marked as withdrawn with no orders as to costs. They contended that the plaintifi filed a Notice of Withdrawal of the entire suit on 22nd October 2024, that at the pre-trial conference of 11th November 2024 the plaintifi's counsel, Mr Paul Magolo, misrepresented that the parties had negotiated and settled the matter, and that the no-costs order was made in the absence of the defendants without any waiver by them, contrary to the principle that costs follow the event under Section 27(1) of the Civil Procedure Act. The plaintifi opposed, arguing that the discretionary costs order was final on the merits and challengeable only on appeal, citing National Bank of Kenya Ltd v Ndungu Njau, and that there was no error or new evidence warranting review. The court applied Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules 2010, and the standard in Kithoi v Kioko, holding that an error apparent on the face of the record existed: the court had mistakenly accepted counsel's unsupported statement of settlement, made while the defendants and their counsel were absent. The court found the plaintifi's counsel had stolen a match and that the defendants had not waived their entitlement to costs. The court allowed the application, awarded the 1st, 2nd and 4th Defendants the costs of the suit, deemed the Bill of Costs dated 25th November 2024 properly on record to proceed to taxation, and awarded the costs of the application to the Defendants. The ruling was delivered virtually at Mombasa on 2nd March 2026 by Antony O. Ombwayo J.

Key legal issues

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01

Error apparent on the face of the record justifying review

Holding

The court found that the plaintifi's counsel misrepresented that the parties had settled the matter, and the court mistakenly accepted this and denied the defendants costs, constituting an error apparent on the record warranting review under Order 45.

Reasoning

The court reviewed the record of 11th November 2024 and found that the defendants and their counsel were absent because the suit had been withdrawn by notice; the court could not confirm the mention notice was served. Counsel for the plaintifi stated the matter was settled without evidence of any settlement, thereby 'stealing a match'. This mistaken acceptance deprived the defendants of costs and was an error apparent on the face of the record, a legitimate ground for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules 2010.

p. 5
02

Entitlement of defendants to costs upon withdrawal of suit

Holding

The defendants, who were forced to defend a suit that was ultimately withdrawn and were not heard on costs, are entitled to the costs of the suit; costs follow the event unless expressly waived.

Reasoning

Relying on Section 27(1) of the Civil Procedure Act and authorities including Mudhihiri Mohammed and Wanjiku v Del Monte, the court held that costs follow the event and a party cannot be deprived of costs unless it acted unreasonably. The defendants neither attended nor waived their entitlement to costs; a waiver of costs could only be made by the parties themselves. The order denying costs was made in their absence based on misrepresentation.

Legal principles established

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  • A review may be granted where there is a mistake or error apparent on the face of the record, such as a court mistakenly accepting counsel's false statement of settlement
  • An application for review must strictly prove its grounds, save for the ground of mistake or error apparent on the record

Court orders

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  1. 1.Awarded the 1st, 2nd and 4th Defendants/Applicants the costs of the suit
  2. 2.Deemed the Bill of Costs dated 25th November 2024 properly on record and ordered it to proceed to taxation
  3. 3.Awarded the costs of the application to the Defendants
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules 2010 (review jurisdiction); Article 159 of the Constitution and sections 1A and 1B of the Civil Procedure Act cited as guiding the wider approach

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, "Bandari v Muye & 4 others (Environment and Land Case E105 of 2022) [2026] KEELC 1356 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1356/eng@2026-03-02

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