Kinyua v Mosoti

the dispute to Court-Annexed Mediation. On 27.3.2024, the parties informed the Court that the mediation process had been unsuccessful. Subsequently, on 3.6.2024, upon consultation between counsels for the respective parties, the Court recorded a consent in respect of the Plainti’s application dated 24.5.2023 on the following terms: a. That an order maintaining the status quo be and is hereby issued pending the hearing and determination of the suit; b. The status quo was dened as follows: c. 4. i. The Defendant shall retain physical possession of the suit property; ii. The Defendant shall not dispose of, transfer, charge, or otherwise alienate the suit property during the pendency of the suit; and iii. The Defendant is restrained from undertaking any developments on the suit property pending the hearing and determination of the suit. The parties were directed to comply with the provisions of Order 11 of the Civil Procedure Rules within twenty-one (21) days. The defendant subsequently led a statement of defence and counterclaim dated 15.7.2024, where he prayed for the following reliefs: a. An order of Set-O be and is hereby granted, to the eect that the Defendant relinquish his share of the property known as Plot No.271 situated on L.R. Number 343/3 (Mavoko Town), in favour of the Plainti as settlement for her contribution towards the suit property herein, Plot No.4 situated on L.R. Number Nairobi/Block 118/45. b. In the alternative, the property known as Plot No.271 situated on L.R. Number 343/3 (Mavoko Town) be subjected to valuation by both parties jointly, and placed for sale; where the full proceeds thereof shall be retained by the Plainti in satisfaction of her claim. c. The Plainti be and is hereby ordered to reimburse the Defendant his fair share of the property known as Plot No.271 situated on L.R. Number 343/3 (Mavoko Town) and in exchange the Defendant be ordered to reimburse the Plainti’s contribution towards the suit property herein, Plot No.4 situated on L.R. Number Nairobi/Block 118/45 and the matter be marked as settled. d. Costs of this Counter-Claim be paid by the Plainti. 5. The defendant also prayed that the Amended Plaint dated 24.5 2023 be dismissed with costs. 6. Following several mentions to conrm compliance with the pre-trial directions, the parties eventually complied, whereupon the matter was xed for hearing on 13.5. 2026. On the said date, the parties appeared before the Deputy Registrar, as the Honourable Lady Justice A. Omollo, who was handling the matter, had since been transferred. Thereafter, the matter was placed before this Court on 2.7.2026 for further directions. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5473/eng@2026-09-16 2

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7. When the matter came up before this Court on 2.7.2026, counsel for the Plainti conrmed that the parties had fully complied with the pre-trial requirements. The suit was consequently xed for hearing on 22.7.2026. On the hearing date, counsel for the Plainti informed the Court that the parties had reached an amicable settlement. A consent dated 22.7.2026 was presented for adoption as the judgment of the Court. The terms are: a. That the defendant shall pay the Plainti a sum of Kshs. 929,600/- in full and nal settlement of her contribution towards the purchase of the suit property, Plot No. 4, a subdivision of Land Reference Nairobi Block 118/45 b. That the sum of Kshs. 929,600/- shall be paid in six (6) equal monthly instalments of Kshs. 154,933.33/- wef the 30th of September 2026 and thereafter on or before the 30th or the end of every subsequent month until payment in full. The payment shall be made to the Plainti’s account details; Bank: Equity Bank Account Number: 0950xxxxxxxxx Account Name: Faith Makena Kinyua Branch: Buruburu c. That in default of payment of any of the instalments, the Plainti be at liberty to execute against the Defendant. d. That upon payment in full of the sum of Kshs. 929,600/-, the Plainti shall execute a deed of Relinquishment and all other necessary instruments relinquishing all her right, title and interest in Plot No. 4 situated in Nairobi Block 118/45 in favour of the Defendant. e. That the Defendant hereby relinquishes any interest in Plot No. 271 situated in LR No. 343/3, Mavoko in favour of the Plainti herein. f. That the Defendant shall execute all such instruments and documents as may be necessary to give eect to the relinquishment of the Defendant’s interest in Plot No. 271 situated in LR No. 343/3, Mavoko, in favour of the Plainti. g. That this consent constitutes a substantive settlement of the Plainti’s claim and the Defendant’s counterclaim. 8. Counsel further indicated that the only outstanding issue requiring determination was that of costs. 9. On the issue of costs, counsel for the Plainti submitted that the Plainti was entitled to the same on the ground that the terms of the consent substantially allowed the Plainti's claim while eectively compromising the Defendant's counterclaim. Counsel further argued that the consent was reached approximately four years after the institution of the suit, during which period the Plainti had incurred considerable legal expenses. It was also submitted that the Plainti had been compelled to le two applications for injunctive relief, participate in Court-Annexed Mediation, and attend several court sessions, some of which were adjourned at the instance of the Defendant. 10. In response, counsel for the Defendant urged the Court to direct that each party bear its own costs. Counsel submitted that the parties were formerly spouses and had entered into the consent voluntarily and in good faith to amicably resolve the dispute. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5473/eng@2026-09-16 3

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11. In light of the foregoing, the only issue falling for determination is whether the Plainti is entitled to an award of costs. 12. Counsel for the Plainti submitted that the Plainti ought to be awarded costs on the basis that the consent recorded by the parties substantially achieved the reliefs sought in the Plaint while eectively disposing of the Defendant's counterclaim. Counsel further argued that since the institution of the suit in April 2022, the Plainti has incurred considerable legal expenses in prosecuting the matter. It was submitted that the Plainti was constrained to le two interlocutory applications, participate in CourtAnnexed Mediation, comply with the pre-trial requirements under Order 11 of the Civil Procedure Rules, and attend numerous court sessions before the matter was eventually resolved. Counsel also contended that several adjournments were occasioned by the Defendant. 13. In response, counsel for the Defendant urged the Court to direct that each party bears its own costs, contending that the dispute was amicably resolved through a consent freely entered into by the parties. 14. Section 27(1) of the Civil Procedure Act vests the Court with discretion to determine by whom and to what extent costs shall be paid. In Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR, the Supreme Court held that while the award of costs remains a matter within the Court's discretion, the general rule is that costs follow the event and any departure from that principle must be justied by sound and sucient reasons. 15. In Morgan Air Cargo Limited v Evrest Enterprises Limited [2014] eKLR, the Court of Appeal armed that a successful litigant is ordinarily entitled to costs unless there exists good reason to deprive such party of that entitlement. 16. In Halsbury’s Laws of England; 4th Edition (Re-issue), [2010], Vol.10. Para 16 it is stated that: “ The court has discretion as to whether costs are payable by one party to another, the amount of those costs, and when they are to be paid. Where costs are in the discretion of the court, a party has no right to costs unless and until the court awards them to him, and the court has an absolute and unfettered discretion to award or not to award them. This discretion must be exercised judicially; it must not be exercised arbitrarily but in accordance with reason and justice” 17. In Kieleko v Ndung'u alias Margaret Wangari Ngugi & another – [2025] KEHC 12666 (KLR), decided on 24 July 2025, the appeal was settled by consent, which was silent on costs. The appellant argued that she had successfully pursued the appeal and incurred litigation expenses. The High Court held that although costs are discretionary, the discretion must be exercised judicially under section 27 of the Civil Procedure Act. The court awarded costs to the appellant, stating that where parties settle by consent and are silent on costs, the successful party may still be entitled to costs. 18. The court observed: “ It would be most unfair and unjust for a party to take another through elaborate litigation... and wish away compensation by way of costs, unless the parties otherwise state in their settlement."See also Republic v Music Copyright Society of Kenya Ltd & another; Oira & 3 others (Interested Parties); Wambeo (Ex Parte Applicant) – [2025] KEHC 2423 (KLR), decided on 7 March 2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5473/eng@2026-09-16 4

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19. In Judicial Hints on Civil Procedure, 2nd Edition (Nairobi) Law Africa, 2011, page 94, Justice (Retired) Kuloba observes that: “ Costs are awarded at the unfettered discretion of the court, subject to such conditions and limitations as may be prescribed and to the provisions of any law for the time being in force, but they must follow the event unless the court has good reason to order otherwise.” 20. “Good reasons” that justify departure from the general rule that ‘costs follow the even' will vary from case to case. The court in Rai & 3 others v. Rai & 4 others supra observed that: “ There was no prescribed denition of any set of good reasons that can justify a court’s departure, in awarding costs, from the general rule, costs-follow-the-event. In the classic common law style, the courts have proceeded on a case-by-case basis to identify good reasons for such a departure. An examination of evolving practices on that question shows that, as an example, matters in the domain of public-interest litigation tend to be exempted from the award of costs.” 21. From the jurisprudence, the exercise of discretion on costs depends on the facts of each case, and is guided by the principle that costs should follow the event unless the court orders otherwise. Such circumstances as are relevant include: I. the conduct of the parties; II. the subject of litigation; III. the circumstances which led to the institution of the proceedings; IV. the events which eventually led to their termination; V. the stage at which the proceedings were terminated; VI. the manner in which they were terminated; VII. the relationship between the parties; and VIII. the need to promote reconciliation amongst the disputing parties pursuant to Article 159 (2)(c) of the Constitution; IX. public interest. 22. In the instant case, the suit was compromised by way of a consent. However, the parties expressly left the issue of costs for determination by the Court. The settlement of a dispute through a consent does not, without more, disentitle a successful litigant to an award of costs. The Court is required to consider the overall outcome of the litigation and the circumstances under which the proceedings were concluded. 23. Upon considering the terms of the consent alongside the pleadings and the history of the proceedings, it is apparent that the Plainti was compelled to commence these proceedings and to prosecute the suit for over a period of approximately four years before the matter was nally resolved. 24. During that period, the Plainti incurred legal costs in ling interlocutory applications, participating in Court-Annexed Mediation, complying with pre-trial directions, and attending numerous mentions and court appearances. The court is not persuaded by the submissions of the Defendant, who has not demonstrated any sucient cause to warrant a departure from the general rule that costs follow the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5473/eng@2026-09-16 5

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event. Accordingly, this being a family matter where the best interests of children are paramount, I nd and hold that the Plainti is entitled to the costs of the suit. 25. Orders accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF SEPTEMBER 2026. …………………………… HON. JUSTICE C.K. NZILI JUDGE Delivered In the Presence of: Ms. Gathoni for plainti Ms. Wajohi for the defendant Court Assistant: Julius https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5473/eng@2026-09-16 6

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