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ELCAllowedELC CIVIL APPEAL NO. E005 OF 2023· [2026] KEELC 5079 (KLR)

Awino & another v Ogosi (Administrators to the Estate of Woshington Ogosi Adongo) (Environment and Land Civil Appeal E005 of 2023) [2026] KEELC 5079 (KLR)

Environment and Land Court
21 July 2026
1,279 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that if you win your case, you get your legal costs unless the judge gives clear written reasons why not.

What this practically means

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Executive summary

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This is a first appeal from the judgment of Hon. B. Omwansa, SPM, delivered on 2nd August 2023 in Oyugis SPM ELC No. 29 of 2019 (formerly Migori ELC No. 67 of 2017). The appeal challenged only the trial court's decision on costs; the findings on liability and the counterclaim were uncontested. The trial court had dismissed the Respondent's claim to exclusive ownership of land parcel Kabondo/Kakangutu East/486 and, on the Appellants' counterclaim, declared them entitled to 0.6 hectares, ordered subdivision and transfer, and issued a permanent injunction - yet directed each party to bear its own costs. The Appellants argued the magistrate erred in principle in denying costs to wholly successful litigants; the Respondent maintained the award of costs is discretionary and properly exercised. Guided by Section 27(1) of the Civil Procedure Act and the Selle and Supermarine authorities, the ELC held that costs follow the event, that discretion must be exercised judiciously, and that a court denying costs to a successful party must state clear and justifiable reasons. The trial judgment assigned no reason for departing from the statutory principle, identifying no misconduct, partial success, or public interest consideration justifying the departure. Holding this a misdirection, the court allowed the appeal and awarded the Appellants the costs of the suit and counterclaim below and of the appeal, and closed the file.

Key legal issues

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01

Whether the trial magistrate's order that each party bear its own costs, without reasons, should be disturbed

Holding

The magistrate erred in principle by denying costs to the wholly successful Appellants without assigning any reason; the appeal on costs was allowed and costs awarded to the Appellants.

Reasoning

Section 27(1) of the Civil Procedure Act provides that costs follow the event unless the court for good reason orders otherwise. The discretion is judicial and must be exercised judiciously. A successful party cannot be denied costs absent unreasonable conduct or other exceptional circumstances, and reasons for departure must be clearly stated. The trial judgment gave no reason for departing from the rule, making appellate interference warranted.

p. 4
02

Principles governing a first appeal

Holding

The court applies the Selle principles: it reconsiders and re-evaluates the evidence and draws its own conclusions, making allowance for not having seen or heard the witnesses.

Reasoning

As a first appeal, the court is entitled to reconsider the evidence and evaluate it itself while bearing in mind that it neither saw nor heard the witnesses, per Selle v Associated Motor Boat Company and Gitobu Imanyara v Attorney General. However, the substantive findings on liability and counterclaim were not contested, so the appeal was decided purely on the exercise of the costs discretion.

p. 2

Legal principles established

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  • Costs follow the event under Section 27(1) of the Civil Procedure Act, and a court departing from that rule must state clear, sufficient and justifiable reasons; an unexplained denial of costs to a successful party is a misdirection justifying appellate interference.

Court orders

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  1. 1.Appeal allowed
  2. 2.Appellants awarded the costs of the suit and counterclaim in the court below
  3. 3.Appellants awarded the costs of this appeal
  4. 4.File closed
On appeal from
Oyugis Senior Principal Magistrate's Court (formerly Migori ELC No. 67 of 2017)
ELC No. 29 of 2019
Jurisdiction invoked
First appellate jurisdiction under the Civil Procedure Act over appeals from subordinate courts

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, "Awino & another v Ogosi (Administrators to the Estate of Woshington Ogosi Adongo) (Environment and Land Civil Appeal E005 of 2023) [2026] KEELC 5079 (KLR)", Case Analysis (2026). ELC CIVIL APPEAL NO. E005 OF 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5079/eng@2026-07-21

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