Ngaruiya & 2 others v Land Registrar Kwale & 2 others (Environment and Land Case E036 of 2025) [2026] KEELC 2748 (KLR)

3. The 3rd Defendant contended that the caution was a lawful measure to preserve unpaid taxes, later settled, and that since the matter was resolved without a substantive determination, no party can be deemed a successful litigant. II. Submissions 4. On 11th March, 2026 while all the parties were present in Court, the Court directed that the issue on costs be canvassed by way of written submission; parties complied. Pursuant to that all the parties obliged and a ruling date was reserved on 24th April, 2026 by Court accordingly. A. The Written Submissions by the Plaintifis 5. The Plaintifis, through the Law firm of Messrs. Nyameta, Mogaka & Magiya Advocates, filed submissions dated 18th March 2026. Mr. Mogaka Advocate submitted that these submissions was in respect to the costs of the suit dated 25th April, 2025, which the Plaintifi sought for the removal of a restriction on L.R Kwale/Diani Beach Block/2144. The said restriction was placed on the property on the application of the 3rd Defendant. The property in question was purchased by the Plaintifis, and before the purchase, on 8th October, 2024, the Plaintifis, through the firm of Nyameta, Mogaka & Magiya Advocates (NMM) applied and paid for oficial search in respect of the property and on 11th October, 2014 a search was issued confirming that the property was free from any encumbrance. (As evidenced by annexure “WGN – 3” (a) and (b), the oficial search and receipt of payment thereof). 6. Based on these findings, the Plaintifis proceeded with the process of purchase and paid for the purchase, and thereafter the property was successfully transferred to the Plaintifis’ name on 20th November, 2024.On 28th November 2024, the Plaintifis conducted a search and established that a restriction was placed on the property on 27th November 2024 as entry 5 in the Green card on the application for restriction by the 3rd Respondent, and despite objection and Notice to the 3rd Defendant to withdraw the restriction, he failed to do so only to withdraw and/or remove it during the pendency of this suit. 7. On the threshold and/ or principle for award of costs. The Learned Counsel submitted that it was a well-settled principle that costs follow an event. In filing this suit, an event has occurred in which case the 3rd Defendant ought to pay costs. The substantive law on costs is the provision of Section 27 of the Civil Procedure Act, Cap. 21. 8. In exercising the court’s discretion to award costs, it has been held in Odunga J in the case of “Joseph Oduor Anode – Versus - Kenya Red Cross Society [2012] KEHC 3607 (KLR)”, which case has laid the principles of award of costs where he held; “ Whereas this Court has discretion when awarding costs, that discretion must, as usual, be exercised judicially. The first point of reference, with respect to the exercise of discretion, is the guiding principles provided under the law. In matters of costs, the general rule as adumbrated in the aforesaid statute is that costs follow the events unless the court is satisfied otherwise. That satisfaction must, however, be patent on record. In other words, where the Court decides not to follow the general principles, the Court is enjoined to give reasons for not so doing. In my view, it is the failure to follow the general principles without reasons that would amount to an arbitrary exercise of discretion and not the other way round.” 9. A similar position is provided in Halsbury’s Laws of England, 4th ed Re-Issue (2010), Vol 10, para 16, which provides that the discretion must be exercised judicially; it must not be exercised arbitrarily but in accordance with reason and justice https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2748/eng@2026-04-30 2

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10. From the foregoing submissions and cited authorities, it was submitted that the Plaintifis were entitled to an award of costs because it was the 3rd Defendant’s arbitrary decision that necessitated the filing of this suit, in which case Plaintifis incurred the costs to institute the suit. B. The Written Submissions by the 3rd Defendant 11. The 3rd Defendant, represented by Messrs. Patricia Leparashao and Lyn Kinyua Advocates, filed submissions dated 25th March 2026. Mr. Kinyua Advocate submitted that these submissions were in compliance of the Court’s directive issued on 11th March 2026 as to the issue of costs. On the issues for determination, the Learned Counsel relied on the sole issue being whether the Plaintifis were entitled to costs. 12. According to the Learned Counsel, the general rule with regard to costs is that costs follow the event. The successful litigant usually has a right to costs.The Counsel also relied on the provision of Section 27(1) of the Civil Procedure Act, Cap. 21 which afirmed this position. 13. The Learned Counsel stated that the Court in the case of:- “Macharia – Versus - Insurance Regulatory Authority & 5 others; Directline Assurance Limited & 2 others (Interested Parties) (Judicial Review Miscellaneous Application E214 of 2024) [2025] KEHC 6958 (KLR)” referred to the Supreme Court’s position on costs in “Jasbir Singh Rai & 3 others – Versus - Tarlochan Singh Rai & 4 others [2014] eKLR” as: “ The Supreme Court in Jasbir Singh Rai & 3 others – Versus - Tarlochan Singh Rai & 4 others [2014] eKLR stated as follows on the issue of award of costs: “It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the efiect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice…” 14. The Learned Counsel argued that the 3rd Defendant placed a caution on the property as a measure to preserve unpaid taxes. The taxes were thereafter paid and the matter was settled. The position of the matter remains that, none of the parties were successful litigants. Furthermore, the Plaintifis have not demonstrated that they were aggrieved by the said caution. For the above reasons, the 3rd Defendant submits that the Plaintifis herein are not entitled to costs. The 3rd Defendant is cognizant that the statutory law and case law grant the Court discretion to award costs. However, this discretion must be exercised judicially. 15. The Court in the case of:- “Macharia – Versus - Insurance Regulatory Authority & 5 others; Directline Assurance Limited & 2 others (Interested Parties) (Judicial Review Miscellaneous Application E214 of 2024) [2025] KEHC 6958 (KLR)” quoted the case “Supermarine Handling Services Ltd v Kenya Revenue Authority [2010] eKLR” which pronounced itself as: “ 17. The Court of Appeal emphasized that: “Costs of any action or other matter or issue shall follow the event unless the court or Judge shall for good reason otherwise order. It is well established that when the decision of such a matter as the right of a successful litigant to recover his costs is left to the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2748/eng@2026-04-30 3

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discretion of the Judge who tried his case, that discretion is a judicial discretion, and if it be so its exercise must be based on facts. If, however, there be, in fact, some grounds to support the exercise by the trial Judge of the discretion he purports to exercise, the question of suficiency of those grounds for this purpose is entirely a matter for the Judge to decide, and the Court of Appeal will not interfere with his discretion in that instance. “Costs of any action, cause or other matter or issue shall follow the event unless the court or Judge shall for good reason otherwise order.” It is trite law that the issue of costs is a discretionary one that is awarded to a successful party. Furthermore, this discretion must be exercised judiciously and a party cannot be denied costs unless it can be shown that they acted unreasonably.” 16. In conclusion, the Learned Counsel urged this Honourable Court rules in favour of the 3rd Defendant. III. Analysis and Determination 17. I have carefully considered the rival submissions of the Plaintifis and the 3rd Defendant together with the statutory framework and judicial authorities cited. Pursuant to the Court directions of 24th February, 2026, in order to reach an informed, equitable and reasonable decision, the Honourable Court is of the view that the following four ( 4 ) issues arise for determination: a. Whether the Plaintifis were legitimately aggrieved by the restriction placed on L.R. Kwale/ Diani Beach Block/2144 by the 3rd Defendant. b. Whether the withdrawal of the restriction during the pendency of the suit constitutes the “event” contemplated under Section 27(1) of the Civil Procedure Act, Cap.21 thereby entitling the Plaintifis to costs c. Whether, in the circumstances of this case, the Court should exercise its discretion to depart from the general principle that costs follow the event. d. Who should bear the costs of the suit, and whether interest on costs is payable under Section 27(2) of the Civil Procedure Act. Issue No. a). Whether the Plaintifis were legitimately aggrieved by the restriction placed on L.R. Kwale/Diani Beach Block/2144 by the 3rd Defendant. 18. Under this sub – title, the main issue herein is whether the Plaintifis were legitimately aggrieved by the restriction placed on their property by the 3rd Defendant, Kenya Revenue Authority.The facts are not in dispute. The Plaintifis conducted an oficial search on 11th October 2024 which confirmed that the property was free of encumbrances. They proceeded to purchase and successfully transfer the property into their names on 20th November 2024. Barely a week later, on 27th November 2024, a restriction was lodged by the 3rd Defendant as entry number 5 in the Green Card. The Plaintifis only discovered this upon conducting a subsequent search on 28th November 2024. Despite issuing objections and notices to the 3rd Defendant to withdraw the restriction, the same was only removed during the pendency of this suit. 19. The Plaintifis argue that this sequence of events demonstrates arbitrariness and that they were compelled to institute proceedings to vindicate their proprietary rights. They rely on the case of:“Joseph Oduor Anode – Versus - Kenya Red Cross Society [Supra]”, where Odunga J held that costs https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2748/eng@2026-04-30 4

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follow the event unless reasons are recorded for departure, and that arbitrary exercise of discretion is impermissible. They also cite Halsbury’s Laws of England (4th ed, Re‑Issue, Vol 10, para 16) to emphasize that judicial discretion must be exercised in accordance with reason and justice. 20. The 3rd Defendant contends that the restriction was a lawful measure to preserve unpaid taxes, later settled, and that no party can be deemed a successful litigant. They rely on the Supreme Court decision in “Jasbir Singh Rai & 3 others – Versus - Tarlochan Singh Rai & 4 others [Supra]”, which afirmed that costs follow the event but judicial discretion must accommodate special circumstances. They also cite “Supermarine Handling Services Ltd – Versus - Kenya Revenue Authority [Supra]”, where the Court of Appeal held that denial of costs is permissible only where a party acted unreasonably. 21. The Court notes that while the 3rd Defendant has statutory authority under the Tax Procedures Act and related revenue laws to secure unpaid taxes, such measures must be exercised proportionately and with due regard to the rights of third parties. In this case, the Plaintifis had already acquired and registered the property after conducting due diligence through oficial searches. The lodging of a restriction without prior notice, and its withdrawal only after litigation commenced, clearly interfered with their proprietary rights and necessitated judicial intervention. 22. In Kenya, the law regarding cautions and restrictions is primarily governed by the Land Registration Act, No. 3 of 2012 (LRA), specifically Sections 71–78, which allow interested parties to protect their interests while protecting registered proprietors from malicious encumbrances. Courts require that these measures be lodged in good faith based on a legitimate, substantive interest in the land, rather than for malicious or obstructive purposes. 23. Further, the provision of Section 75 of the Land Registration Act, No. 3 of 2012, specifically stipulates that any person who lodges or maintains a caution “wrongfully and without reasonable cause” shall be liable to pay compensation for damages sustained by any person. In the case of “Zablon Kamau Nyoro (Suing as the legal representative of the Estate of the Late Hellen Chepkosgei Kimrgor) [2019] eKLR”, the Environment and Land Court (ELC) emphasized that a caution placed without a legitimate interest—where the cautioner has no, or has lost, a legal right to the property—is considered malicious and actionable for damages. 24. In the case of “Mulalya – Versus - Muathe & 2 others [2023] KEELC 16269 (KLR)”, the Court cautioned against the abuse of Section 26(1)(b) of the LRA, noting that registered proprietors cannot use the cover of being a “registered owner” to shield fraudulent activities that prejudice, mislead, or trap innocent buyers. The court must be vigilant to protect innocent purchasers who rely on a clean register. Further in “Republic – Versus - Land Registrar & Another; Wamae & Another (ELC JR E001 of 2022)”, the court stressed that while the Registrar can place a restriction to prevent fraud (Section 76 LRA), this must be done with due process. The owner must be given an opportunity to be heard, as a restriction placed without such, or on arbitrary grounds, infringes on the right to own property. Applying that reasoning here, the Plaintifis w6ere legitimately aggrieved by the restriction, as it was imposed after transfer and without afiording them an opportunity to be heard. 25. Accordingly, the Honourable Court finds that the Plaintifis were indeed aggrieved by the restriction placed against their property by the 3rd Defendant. Their recourse to litigation was justified, and the withdrawal of the restriction during the pendency of the suit confirms that their grievance was genuine and legitimate. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2748/eng@2026-04-30 5

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Issue No. b). Whether the withdrawal of the restriction during the pendency of the suit constitutes the “event” contemplated under Section 27(1) of the Civil Procedure Act, thereby entitling the Plaintifis to costs. 26. Under this sub - title, the main issue herein is whether the withdrawal of the restriction during the pendency of the suit amounts to the “event” contemplated under the provision of Section 27(1) of the Civil Procedure Act, Cap. 21 thereby entitling the Plaintifis to costs. Section 27(1) of Act provides that costs follow the event unless the Court, for good reason, orders otherwise. The jurisprudence of Kenyan courts has consistently interpreted “event” to mean the outcome or result of litigation, whether by judgment, settlement, or conduct of the parties that vindicates one side’s position. 27. In the case of:- “Jasbir Singh Rai & 3 others – Versus - Tarlochan Singh Rai & 4 others [Supra]”, the Supreme Court held that costs follow the event, but the Court retains discretion to accommodate special circumstances. The Court emphasized that the “event” is not limited to a formal Judgment but includes any legitimate occasion where a party’s grievance is vindicated. Similarly, in “Joseph Oduor Anode – Versus - Kenya Red Cross Society [Supra]”, Odunga J observed that where the Court decides not to follow the general principle, reasons must be recorded, otherwise deviation amounts to arbitrary exercise of discretion. This underscores that the “event” is the occurrence that necessitates litigation and leads to relief, whether partial or complete. 28. In the present case, the Plaintifis instituted suit after discovering that a restriction had been lodged against their property. The 3rd Defendant withdrew the restriction only during the pendency of the suit. This withdrawal efiectively granted the Plaintifis the relief they sought, albeit without a formal Judgment. The Plaintifis’ grievance was therefore vindicated by the Defendant’s conduct. 29. The Court of Appeal in “Supermarine Handling Services Ltd – Versus - Kenya Revenue Authority [2010] eKLR” emphasized that costs are discretionary but must be exercised judicially, and denial of costs is permissible only where a party acted unreasonably. Here, the Plaintifis acted reasonably by instituting proceedings to protect their proprietary rights. The 3rd Defendant’s withdrawal of the restriction during litigation confirms that the Plaintifis’ claim was legitimate. Applying that principle, fairness dictates that the Plaintifis should not be left to bear the costs of litigation necessitated by the Defendant’s action. 30. Accordingly, the Court finds that the withdrawal of the restriction during the pendency of the suit constitutes the “event” contemplated under Section 27(1). The Plaintifis, having been compelled to litigate to secure their rights, are entitled to costs against the 3rd Defendant. Issue No. c). Whether, in the circumstances of this case, the Court should exercise its discretion to depart from the general principle that costs follow the event. 31. Under this subtitle, the main issue herein is whether the Court should, in the circumstances of this case, depart from the general principle that costs follow the event as provided under Section 27(1) of the Civil Procedure Act. The statutory framework is clear. Section 27(1) provides that costs follow the event unless the Court, for good reason, orders otherwise. The discretion vested in the Court is not unfettered; it must be exercised judicially, guided by fairness, proportionality, and the ends of justice. The provision itself is a safeguard against arbitrary denial of costs, ensuring that parties who are compelled to litigate to vindicate their rights are not left burdened with expenses caused by the wrongful conduct of others. 32. Kenyan jurisprudence has consistently emphasized that departure from the general principle is permissible only in exceptional circumstances. In “Joseph Oduor Anode [Supra]”, Odunga J held https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2748/eng@2026-04-30 6

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that deviation must be justified by reasons on record, otherwise it amounts to arbitrary exercise of discretion. The Court of Appeal in “Supermarine Handling Services Limited [Supra]” reinforced this position, stressing that denial of costs is permissible only where a party acted unreasonably or where the circumstances of the case make such denial necessary to achieve justice. 33. The 3rd Defendant urges the Court to depart from the principle, arguing that none of the parties emerged as successful litigants since the restriction was withdrawn during the pendency of the suit. They rely on the Supreme Court decision in “Jasbir Singh Rai & 3 others –[Supra]”, which afirmed that costs follow the event but judicial discretion must accommodate special circumstances. The Defendant’s position is that since the matter was resolved administratively, without a final determination on merits, no costs should be awarded. 34. The Court is not persuaded that this is a case warranting departure. The Plaintifis were compelled to institute proceedings to protect their proprietary rights after the restriction was lodged without notice. The withdrawal of the restriction during litigation vindicated their grievance. This constitutes the “event” contemplated under Section 27(1). The Plaintifis acted reasonably, and their claim was legitimate. To deny them costs would be to punish them for seeking judicial redress against an arbitrary administrative act. 35. Applying that principle here, fairness dictates that the Plaintifis should not be left to bear the costs of litigation necessitated by the Defendant’s conduct. The Court must balance the statutory duty of the 3rd Defendant to secure revenue against the proprietary rights of innocent purchasers. In this balance, the Plaintifis’ right to costs is the just outcome. 36. Accordingly, the Court finds no good reason to depart from the general principle. The circumstances of this case do not justify denial of costs. The Plaintifis are entitled to costs, payable by the 3rd Defendant. To hold otherwise would undermine the principle that costs follow the event and would encourage arbitrary administrative actions without consequence. Issue No. d). Who should bear the costs of the suit, and whether interest on costs is payable under Section 27(2) of the Civil Procedure Act. 37. Under this subtitle, the main issue herein is who should bear the costs of the suit and whether interest on costs is payable pursuant to Section 27(2) of the Civil Procedure Act, Cap. 21. Section 27(1) of the Civil Procedure Act establishes the general principle that costs follow the event unless the Court, for good reason, orders otherwise. Section 27(2) further provides: “ The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.” 38. This provision empowers the Court not only to award costs but also to grant interest on those costs, subject to a ceiling of 14% per annum. It is a recognition that costs are not merely compensatory but also restorative, ensuring that a successful litigant is not disadvantaged by the time taken to recover expenses incurred in litigation. 39. From the analysis above, the Court has found that the Plaintifis were legitimately aggrieved by the restriction placed on their property, and that the withdrawal of the restriction during the pendency of the suit constitutes the “event” contemplated under Section 27(1). The Plaintifis were compelled to litigate to protect their proprietary rights, and the 3rd Defendant’s conduct necessitated the proceedings. Accordingly, the 3rd Defendant should bear the costs of the suit. This aligns with the principle articulated in “Jasbir Singh Rai & 3 others [Supra]”, where the Supreme Court emphasized https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2748/eng@2026-04-30 7

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that costs are a natural consequence of litigation and should ordinarily be borne by the party whose conduct necessitated judicial intervention. 40. The question of interest on costs is discretionary. The jurisprudence is clear that interest on costs is not automatic but is awarded to ensure that the successful party is not prejudiced by delays in reimbursement. In the present case, the Plaintifis have been kept out of the enjoyment of their property rights and compelled to incur expenses in litigation. Awarding interest on costs would serve the ends of justice by compensating them for the delay in reimbursement. It would also deter arbitrary administrative actions that force innocent proprietors into unnecessary litigation. However, the Court must balance this against the statutory ceiling of 14% and prevailing court practice, which generally awards interest at court rates unless special circumstances justify a higher rate. The Court notes that while the Plaintifis sufiered inconvenience, the matter was resolved without protracted trial, and therefore court rates are suficient to meet the ends of justice. 41. Therefore, the Honourable Court finds that the 3rd Defendant shall bear the costs of the suit. Interest on costs shall be payable at court rates from the date of taxation until payment in full, in line with Section 27(2) of the Civil Procedure Act. This ensures that the Plaintifis are made whole, while maintaining consistency with established judicial practice. IV. Conclusion and Disposition 42. In long analysis, the Honourable Court has carefully considered and weighed the confiicting parties’ interests as regards to the balance of convenience. In a nutshell, I proceed to order the following: – a. That the Court finds that the Plaintifis were legitimately aggrieved by the restriction placed on L.R. Kwale/Diani Beach Block/2144 by the 3rd Defendant. b. That the Court further finds that the withdrawal of the restriction during the pendency of the suit constitutes the “event” contemplated under Section 27(1) of the Civil Procedure Act. c. That the Court is not persuaded that there exists good reason to depart from the general principle that costs follow the event. d. That accordingly, the Plaintifis are entitled to costs of this suit, which shall be borne exclusively by the 3rd Defendant, Kenya Revenue Authority, whose conduct necessitated the institution of proceedings. e. That interest on costs shall be payable at court rates from the date of taxation until payment in full, pursuant to Section 27 (2) of the Civil Procedure Act, Cap. 21 to ensure that the Plaintifis are not prejudiced by delay in reimbursement. It is so ordered accordingly. RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS 30TH DAY OF APRIL 2026. HON. MR. JUSTICE L. L. NAIKUNI ENVIRONMENT AND LAND COURT AT KWALE Ruling delivered in the presence of:a. M/s. Daniel Disi, the Court Assistant. b. Mr. Magiya Advocate holding brief Mr. Mogaka Advocate for the Plaintifis. c. M/s. Kiti Advocate for the 1st & 2nd Defendants. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2748/eng@2026-04-30 8

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d. M/s. Masai Advocate holding brief for Mr. Kinyua Advocate for the 3rd Defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2748/eng@2026-04-30 9

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