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ELCOtherJudicial Review (Chamber Summons dated 25th November 2026; Notice of Motion dated 3rd December 2025), Mombasa ELCC No. 474 of 2009 (underlying decree)· [2026] KEELC 4264 (KLR)
Republic v Director of Surveys & another; Hodson (Ex parte Applicant) (Judicial Review Application E012 of 2025) [2026] KEELC 4264 (KLR)
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·~7 min to read original · ~4 min briefThe bottom line
#A Kenyan court refused to award costs against government survey offices that quickly complied with a land decree, leaving each side to pay its own legal bills.
What this practically means
#Executive summary
#The ex-parte applicant obtained leave to apply for mandamus compelling the Director of Survey, the County Surveyor Kwale and the Attorney General to implement a decree issued on 14 November 2019 in Mombasa ELCC No. 474 of 2009 by rectifying the registry index map for Kwale/Galu Kinondo. After filing the substantive motion, the respondents were served in February and March 2026, and on 5 May 2026 the 2nd Respondent swore a replying affidavit confirming compliance with the decree, annexing a rectified Registrar Index Map. At mention, counsel for the applicant conceded the application had been overtaken by events but sought costs on the ground that the proceedings were necessitated by the respondents' failure to comply despite efforts at engagement. State Counsel opposed, arguing the respondents' compliance averted a full hearing. The court held that under Section 27 of the Civil Procedure Act costs are discretionary and follow the event absent good reason. Examining the applicant's own exhibits, it found that apart from a letter of 17 September 2025, no correspondence was addressed to the respondents, who were only served with the motion itself; they then complied within three months, while the matter was still at an early stage, saving costs and time. The respondents being public offices, any award would be paid from public funds, which the court declined to sanction. The court departed from the general rule and ordered each party to bear their own costs. The ruling resolved only the question of costs, the substantive mandamus having been rendered moot by compliance.
Key legal issues
#01
Whether the ex-parte applicant should be awarded costs of judicial review proceedings rendered moot by the respondents' compliance with the decree
Holding
The application for costs was refused; each party to bear their own costs.
Reasoning
Section 27 of the Civil Procedure Act makes costs discretionary, with costs following the event absent good reason. The respondents complied with the decree within three months of being served with the substantive motion, averting a contested hearing. The applicant's exhibited correspondence was mostly addressed to the land registrar, not the respondents, undermining the claim of repeated demands. Since the respondents are public offices, any award would burden taxpayers. These circumstances justified a departure from the general rule.
p. 4
Legal principles established
#- Costs are discretionary and follow the event unless the court, for good reason which it is obliged to state, otherwise orders.
- The award of costs is governed by the judiciously-exercised discretion of the court, accommodating the special circumstances of the case, including the public interest and the conduct of the parties.
- In determining costs, courts consider the conduct of the parties, the subject of litigation, the circumstances leading to the proceedings and the events leading to their termination.
Court orders
#- 1.Each party to bear their own costs of the judicial review proceedings
- Jurisdiction invoked
- Article 159 of the Constitution of Kenya, 2010; Sections 9 and 10 of the Fair Administrative Action Act, 2015; Order 53 of the Civil Procedure Rules 2010; Sections 13 and 14 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Director of Surveys & another; Hodson (Ex parte Applicant) (Judicial Review Application E012 of 2025) [2026] KEELC 4264 (KLR)", Case Analysis (2026). Judicial Review (Chamber Summons dated 25th November 2026; Notice of Motion dated 3rd December 2025), Mombasa ELCC No. 474 of 2009 (underlying decree). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4264/eng@2026-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.