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ELCAllowedNotice of Motion dated 13th October 2025 (arising from Siakago ELC Case No. E014 of 2022)· [2026] KEELC 2869 (KLR)
Njue v Opiyo (Environment and Land Appeal E025 of 2024) [2026] KEELC 2869 (KLR)
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#What this practically means
#Executive summary
#This ruling by the Environment and Land Court at Embu (E.C. Cherono, ELC Judge) determines a Notice of Motion dated 13th October 2025 by Benson Nyaga Njue seeking review of the costs component of the Court's own judgment of 11th September 2025. That judgment had allowed the Applicant's appeal, set aside the learned Magistrate's Ruling of 12th June 2023, the interlocutory judgment of 23rd August 2023 and the ex-parte judgment of 25th October 2023 in Siakago ELC Case No. E014 of 2022, and remitted the matter for retrial — but inexplicably awarded the costs of the appeal to the Respondent, David Odero Opiyo. The Applicant argued this was an error apparent on the face of the record under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010. The Respondent conceded the appeal was allowed but defended the costs order as a discretionary 'throwaway costs' award given the remittal. The Court held that while costs are discretionary under Section 27(1), the discretion must be exercised judicially with reasons appearing on the record where the default rule that costs follow the event is departed from. Finding no reasons articulated in the judgment, the Court held the order internally inconsistent and self-evidently erroneous. The application was allowed: the costs order was set aside, the successful Applicant was awarded the costs of the appeal, and the Respondent was ordered to bear the costs of the application.
Key legal issues
#01
Whether the award of appeal costs to the unsuccessful Respondent was an error apparent on the face of the record
Holding
It was, because the Judgment allowed the Appeal yet awarded costs to the Respondent without any reasons for departing from the rule that costs follow the event.
Reasoning
The Court had allowed the Applicant's appeal and set aside the trial court's decisions, making the Applicant the successful party. Yet costs were awarded to the Respondent with no articulated reasons. Circumstances such as a remittal could justify departure, but any such reasoning must be expressly stated in the judgment. The unexplained order was internally inconsistent with the substantive finding of success, meeting the Order 45 Rule 1 threshold of self-evident error requiring no re-assessment of evidence.
p. 2
Legal principles established
#- The default rule is that costs follow the event; a departure must be justified by reasons articulated by the court.
- An error apparent on the face of the record is self-evident and requires no fresh examination of evidence.
- Discretion on costs must be exercised judicially and on stated reasons, not capriciously.
Court orders
#- 1.The Application dated 13th October 2025 is allowed
- 2.The order on costs in the Judgment of 11th September 2025 awarding costs of the Appeal to the Respondent is set aside
- 3.The Applicant/Appellant, being the successful party in the Appeal, is awarded the costs of the Appeal
- 4.The costs of this Application shall be borne by the Respondent
- On appeal from
- Magistrates' Court (Siakago)
- Siakago ELC Case No. E014 of 2022
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act, Cap 21, and Order 45 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njue v Opiyo (Environment and Land Appeal E025 of 2024) [2026] KEELC 2869 (KLR)", Case Analysis (2026). Notice of Motion dated 13th October 2025 (arising from Siakago ELC Case No. E014 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2869/eng@2026-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.