Ngegwa & another v Company (Environment and Land Case 418 of 2017) [2026] KEELC 558 (KLR)

6. Where a suit is compromised, it does not mean that there is a successful or losing party. The discretion of the court is therefore called in to determine the issue of costs. Where however, a party is successful, as Section 27 of the Civil Procedure Act provides, the costs shall follow the event. Where also a defendant succeeds in the dismissal of the plaintifi suit the same principle applies. 7. When all factors are considered in these cases, the plaintifis would not have instituted the suits had it not been for the actions of the 1st defendant. 8. In Civil case No. 179 of 2013 Morgan Air Cargo Limited v Everest Enterprises Limited, a partial judgment was recorded by consent by the parties. The costs however became an issue. Gikonyo J said in part as follows, The consent filed herein did not compromise on costs as that item was left out of the compromise and was to be agreed at a later date. It is the failure to agree on costs that parties ask the court to make a determination on the issue.” 9. It is generally accepted that a successful party cannot be deprived of his costs. However, intervening circumstance may deny him such an order. The award of costs is a matter of the discretion of the court, and should not be considered as a matter of course. Gikonyo J in the case cited above said as follows, The exercise of the discretion, however, depends on the circumstances of each case. Therefore, the law in designing the legal phrase that “costs follow the event” was driven by the fact that there could be no “one- size- fit- all” situation on the matter. That is why section 27 (1) of the Civil Procedure Act is coached the way it appears in the statute; and even all literally works and judicial decisions on costs have recognised this fact and were guided by and decided on the facts of the case respectively. Needless to state, circumstances difier from case to case.” 10. Of necessary note, the successful claim herein is not one which does not attract costs or is incapable of attracting costs. The consent filed herein did not compromise on costs as that item was left out of the compromise and was to be agreed at a later date. It is the failure to agree on costs that parties asked the court to make a determination on the issue. There is also no attrition of any conduct which would prevent the Plaintifi from being awarded costs. In this case, I do not find any material on which an estoppel would arise in this matter. Further illumination on this position is in the decision of the court in Orix Oil (kenya) Limited v Paul Kabeu & 2 Other [2014] eKLR where the court stated: ‘’…the court should have been guided by the law that costs follow the event, and the Plaintifi being the successful party should ordinarily be awarded costs unless its conduct is such that it would be denied the costs or the successful issue was not attracting costs. None of those deviant factors are present in this case and the court would still have awarded costs to the Plaintifi, which I do. 11. In the instant case it may well be argued, and rightly so, that the plaintifis succeeded in the suit. I say so because orders sought after in the plaintifi were actualized when the suit was compromised. 12. For that reason, I find, the plaintifis are entitled to costs. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 5TH DAY OF FEBRUARY 2026. MOHAMMED N. KULLOW https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/558/eng@2026-02-05 2

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JUDGE Ruling delivered in the presence of: No appearance for the Applicants No appearance for the Respondent Philomena W. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/558/eng@2026-02-05 3

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