Republic v Chief Executive Officer, National Irrigation Authority & another; Lago (Ex parte Applicant) (Environment and Land Judicial Review Case E047 of 2025) [2026] KEELC 3316 (KLR)

3. He cites the case of Rai & 3 Others v Rai & 4 Others [2014] KESC 31 KLR to submit that a party who shows a legitimate occasion of a suit is entitled to costs even if the matter is settled or withdrawn due to the other party’s late actions. He insists that it is the Respondents’ delay which forced him to incur legal expenses and costs to pursue money due to him, thus they ought to compensate him for the trouble taken in prosecuting the case. 4. He urges the court to consider that a certificate of orders against the government was issued on 9th June 2025 and served on the Respondents thus they were fully aware of the obligation to pay but they failed to, thereby disobeyed this court’s orders and exhibited a high degree of negligence. Further, that Court should consider that it is only after he had been granted leave and directions taken for filing of submissions to dispense the suit, that the Respondents paid him. 5. On their part, the Respondents submit that an award of costs against the 2nd Respondent which is a statutory body funded entirely from the exchequer is in practical efiect, an order against taxpayers and in this regard, courts have consistently recognized the need for judicial restraint. 6. They further submit that while the Ex Parte Applicant portrays the delay in payment as a year-long act of defiance against a court order, the Government Proceedings Act establishes a special statutory regime for enforcement of money judgments against the Government and its agencies. They point out that the period between service of the Certificate of Order (9th June 2025) and payment (18th December 2025) while longer than ideal, is attributable to the ordinary bureaucratic processes’ attendant upon the administration of public funds. 7. They also urge the court to consider that the sum at issue is a modest Kshs. 50,000/-, but if costs are awarded on the scale now sought by the Ex parte Applicant, they are likely to exceed the principal sum. The court is also urged to consider that they did not contest the suit substantively and as such the matter did not proceed to a full hearing. 8. With respect to the authority relied on by the Ex Parte Applicant, Rai & 3 Others v Rai & 4 Others [2014] KESC 31 KLR, they admit to the principle that costs may be awarded where the matter has been resolved or withdrawn by reason of a Respondent's late compliance but insist that the court has discretion to determine costs. They contend that the just and appropriate order in the circumstances is that each party bears its own costs, or in the alternative, the court should award strictly nominal costs. Analysis and Determination 9. Upon consideration of the Court record and submissions, the only issue for determination is who should bear costs of the suit. 10. It is not in dispute that the Ex parte Applicant had obtained an award of Kshs.50,000/= in Nairobi ELC Miscellaneous Civil Application No. E 169 of 2024 and a Certificate of Order against the government was issued on 9th June 2025 and served upon the Respondents. 11. It is not disputed that payment of Ksh.50,000/= was made to the Ex parte Applicant on 15th December 2025, during the pendency of this suit. 12. The Ex parte Applicant hence sought for the costs as against the Respondents. He insists that he incurred costs to prosecute the instant Motion since the Respondents delayed in paying him the awarded costs. 13. The Respondents attribute the delay in paying the Ex parte Applicant to alleged bureaucratic processes attendant to disbursement of public funds and urge the court to restrain itself from awarding costs https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3316/eng@2026-06-02 2

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to the Ex Parte Applicant on account that the 2nd Respondent is funded by the ex-chequer therefore such award would fall on tax payers. They also argue that the decretal sum was modest and that the duration of these proceedings was brief. 14. On awarding of costs, section 27(1) of the Civil Procedure Act stipulates that: “ Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the 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.” 15. The Supreme Court held as follows in Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR): “ 18. 16. 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. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation,” Further, in Farah Awad Gullet v CMC Motors Group Limited [2018] eKLR - Civil Appeal 206 of 2015, it was held that: “ It is our finding that the position in law is that costs are at the discretion of the court seized of the matter with the usual caveat being that such a discretion should be exercised judiciously, meaning, without caprice or whim and on sound reasoning (see Githiaka versus Nduriri [2004] 2KLR). Secondly that a Court can only withhold costs either partially or wholly from a successful party for good cause to be shown.” 17. In the current scenario, the Respondents already paid the Ex parte Applicant the costs emanating from the aforementioned Miscellaneous Cause. I note the costs were paid within a period of six (6) months after issuance of the certificate of order against the government. It is not disputed that the 2nd Respondent is a government agency while the instant judicial review concerned seeking an order of mandamus for payment of costs. It is trite that where a party seeks costs against a government agency, they have to apply for a writ of mandamus first. The Ex parte Applicant has not disputed that there were bureaucratic processes experienced by the 2nd Respondent hence the delay in paying the costs. Further, there is no indication that the Ex parte Applicant sufiered any prejudice. 18. In the foregoing, while associating myself with the decisions cited, noting that the instant application was not opposed, I direct that each party bears their own costs. DATED SIGNED AND DELIVERED AT NAIROBI THIS 2ND DAY OF JUNE, 2026 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3316/eng@2026-06-02 3

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CHRISTINE OCHIENG JUDGE In the presence of: Ms Awuor for Applicant Kanyiri Kariuki holding brief for Ochola for 1st and 2nd Respondents Court Assistant: Brandy https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3316/eng@2026-06-02 4

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