Kinyua Kamundi & DT Muyaa (Practising as Kinyua Muyaa & Company Advocates) v Southcoast Holding Ltd (Miscellaneous Civil Application E004 of 2024) [2026] KEELC 2779 (KLR)
The bottom line
#A Kenyan court ordered a company to pay the other side's legal costs after its unnecessary, delayed court application was overtaken by events.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to costs of an application overtaken by events
The Respondent/Applicant was not entitled to costs; the application was spent and unnecessary, occasioned by its own delay and misrepresentation, and costs were awarded to the Applicant/Respondent despite the general rule framing
The court found the application was filed at the last minute, was reactive and premised on mischaracterizations of fact, suppressing material correspondence including the 9th July 2025 letter and 14th August 2025 email. The cheques were dated 15th August 2025, contradicting claims of readiness on 11th August 2025. The opposing firm had proposed NCBA Bank as early as 9th July 2025 and eventually cooperated. Under Section 27(1) CPA and the cited precedents, discretion on costs must be exercised judicially and costs should not reward inefficiency, misrepresentation or tactical litigation.
Exercise of judicial discretion on costs under Section 27 of the Civil Procedure Act
Discretion must be exercised judicially guided by fairness and the general rule that costs follow the event; departure is justified where a party occasioned unnecessary litigation
The court held that the 'event' in litigation is the outcome of the application; since the application was overtaken by events and did not yield substantive relief, it was effectively unnecessary once compliance occurred. Awarding costs to the Respondent/Applicant would contradict the costs-follow-the-event principle and unjustly penalize the Applicant/Respondent who was compelled to respond to a meritless application that suppressed material facts.
Legal principles established
#- Costs follow the event unless the court for good reason otherwise directs; where an application is spent, costs may be awarded against the party whose delay, misrepresentation and suppression of material facts occasioned the unnecessary litigation
Court orders
#- 1.That the Notice of Motion application dated 15th August 2025 filed by the Respondent/Applicant seeking variation of the orders issued on 3rd July 2025 and permission to deposit funds directly into Court be and is hereby found to be spent
- 2.That Respondent/Applicant shall bear the costs of the application to be paid to the Applicant
- 3.That the matter shall proceed to taxation of the Advocate–Client Bill of Costs as previously directed
- Jurisdiction invoked
- Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Cap. 21; Order 45 Rule 1 of the Civil Procedure Rules, 2010; Article 159 of the Constitution of Kenya, 2010; Section 27(1) of the Civil Procedure Act on costs
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kinyua Kamundi & DT Muyaa (Practising as Kinyua Muyaa & Company Advocates) v Southcoast Holding Ltd (Miscellaneous Civil Application E004 of 2024) [2026] KEELC 2779 (KLR)", Case Analysis (2026). Not stated in the ruling (arising from ruling of 3rd July 2025 in the principal Notice of Motion dated 14th May 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2779/eng@2026-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.