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ELCAllowedNot stated in the judgment (ruling on notice of motion dated 15-8-2025)· [2026] KEELC 1992 (KLR)

Githaiga v Kanyuira (Land Case Appeal E014 of 2023) [2026] KEELC 1992 (KLR)

High Court of Kenya (appellate side, Murang'a)
14 April 2026
MGM.N. Gicheru
552 words in judgment
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The bottom line

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Kenya's High Court confirmed that when a judgment clearly states who pays costs, courts must follow it—here, the respondent pays the dismissed counterclaim's costs.

What this practically means

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Executive summary

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This ruling by M.N. Gicheru J at Murang'a determines an unopposed notice of motion dated 15-8-2025 by the Appellant under Order 45 rule 1(1)(a) of the Civil Procedure Rules, sections 1A, 1B, 3, 3A and 99 of the Civil Procedure Act and Article 159 of the Constitution. The Appellant sought review and interpretation of this court's judgment dated 24-10-2024, a finding that the Respondent bears the costs of the counterclaim dated 17-8-2022, and a direction to the lower court to assess his bill of costs dated 18-12-2024, which the trial court had declined to tax on the ground that it could not tell from the appeal judgment who should pay the counterclaim costs. The court re-examined the judgment of 24-10-2024 and found that at paragraph 69 and again at paragraph 72 the learned Judge had expressly stated twice that the Respondent's counterclaim was dismissed with costs to the Appellant. Concluding there was no doubt or ambiguity as to who gets the costs of the dismissed counterclaim, the court allowed the motion in terms of prayers (a), (b) and (c): it reviewed and interpreted the judgment, confirmed that the costs of the counterclaim go to the Appellant (John Kimani Githaiga), directed the lower court to assess the Appellant's bill of costs, and awarded costs of the motion to the Appellant.

Key legal issues

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01

Whether the judgment dated 24-10-2024 was ambiguous as to liability for the costs of the counterclaim dated 17-8-2022

Holding

The judgment was clear: the counterclaim was dismissed with costs to the Appellant, so the Respondent bears those costs.

Reasoning

The court re-read its own judgment of 24-10-2024 and found that at paragraph 69 and again at paragraph 72 the learned Judge had expressly stated twice that the counterclaim was dismissed with costs to the Appellant. Given this express double provision, the trial court's professed inability to determine liability for the counterclaim costs could not stand, and the motion, being unopposed, succeeded in terms of prayers (a), (b) and (c).

p. 2

Legal principles established

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  • Where a judgment twice expressly awards costs of a dismissed counterclaim to a party, there is no doubt or ambiguity requiring more than interpretation on review, and the costs go to that party

Court orders

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  1. 1.Review and interpretation of the judgment and decree dated 24-10-2024 granted (prayer (a))
  2. 2.Declaration that the Respondent bears the costs of the counterclaim dated 17-8-2022, with those costs awarded to the Appellant (prayer (b))
  3. 3.Direction that the lower court proceed to assess the Appellant's bill of costs dated 18-12-2024 (prayer (c))
  4. 4.Costs of the motion to the Appellant
On appeal from
Trial court (magistrates' court, exact court not stated)
Not stated
Jurisdiction invoked
Order 45 rule 1(1)(a) Civil Procedure Rules; Sections 1A(1), 1B(1)(a), 3, 3A and 99 Civil Procedure Act; Article 159(a)-(e) Constitution of Kenya

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, "Githaiga v Kanyuira (Land Case Appeal E014 of 2023) [2026] KEELC 1992 (KLR)", Case Analysis (2026). Not stated in the judgment (ruling on notice of motion dated 15-8-2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1992/eng@2026-04-14

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