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ELCAllowedELCLA NO. E001 OF 2025· [2026] KEELC 1545 (KLR)

Dache v Otieno (Environment and Land Appeal E001 of 2025) [2026] KEELC 1545 (KLR)

Environment and Land Court
12 March 2026
EAE. Asati
1,619 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled that legal costs must be calculated from the money actually awarded — here just Kshs 1,400 — not the amount claimed.

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 Vihiga against a ruling of Hon. Beryl Omollo SRM dated 2nd July 2024, by which the trial court taxed the respondent's party and party bill of costs at Kshs 116,745 in a land suit where judgment had been entered for the respondent only in the sum of Kshs 1,400 (a refund of purchase consideration) plus interest from 30th July 1989, her claims for a declaration of ownership and a permanent injunction having failed. The appellant, who was the defendant below, challenged the taxation on three grounds: that costs were awarded on dismissed prayers, that the Advocates Remuneration Order and legal guidelines were not followed, and that the costs were excessive. The respondent defended the taxation, relying on Section 27 of the Civil Procedure Act and on Joreth Limited v Kigano & Associates and Peter Muthoka v Ochieng, and argued that no reference under Rule 11 had been filed. Justice E. Asati held, following Joreth, that the value of the subject matter for taxation must be drawn from the pleadings, judgment or settlement; since no valuation proved the pleaded Kshs 300,000 and the substantive prayers failed, the Kshs 1,400 awarded should be the basis for charging costs. The court found the ruling erroneous in that respect, allowed the appeal, set aside the ruling of 2nd July 2024, and remitted the matter to the trial court for reassessment of costs based on the Kshs 1,400 award, with each party bearing its own costs of the appeal.

Key legal issues

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01

Basis for taxation of party and party costs

Holding

The trial court erred by not using the sum awarded (Kshs 1,400) as the value of the subject matter for taxation; the declaratory and injunction prayers having failed, the awarded sum is the proper basis

Reasoning

The court noted no appeal lay against the trial judgment, only against taxation. Although the respondent pleaded a market value of Kshs 300,000, no valuation report proved it, and the claims for declaration of ownership and permanent injunction failed. Applying Joreth Limited v Kigano & Associates, the value of the subject matter is drawn from the pleadings, judgment or settlement; here the judgment awarded only Kshs 1,400 plus interest, so that sum should anchor the taxation.

p. 7
02

Principle governing award of costs

Holding

Costs follow the event but compensate, not penalise; the respondent was the successful litigant on the sum awarded

Reasoning

Relying on Kenya Anti-Corruption Commission v Marshalls East Africa Ltd and Jasbir Singh Rai v Tarlochan Singh Rai, the court reaffirmed that the basic rule is that costs follow the event, but the principle compensates the successful party for trouble taken in litigation and must not be applied as a penal measure against the losing party.

p. 7

Legal principles established

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  • The value of the subject matter for taxation of a bill of costs is determined from the pleadings, the judgment or settlement, and where the claim for land fails, the sum actually awarded is the basis for charging costs
  • Costs are awarded to compensate the successful party, not to punish the unsuccessful party

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling dated 2nd July 2024 by the trial court set aside
  3. 3.Matter referred back to the trial court to reassess the respondent's party and party costs based on the award of Kshs 1400
  4. 4.Each party to bear its own costs of the appeal
On appeal from
Vihiga Principal Magistrate's Court (SPMCEL)
VIHIGA SPMCL & E No. 1 of 2017
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's ruling on taxation (appeal against ruling of Hon. Beryl Omollo SRM delivered 2nd July 2024)

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, "Dache v Otieno (Environment and Land Appeal E001 of 2025) [2026] KEELC 1545 (KLR)", Case Analysis (2026). ELCLA NO. E001 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1545/eng@2026-03-12

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