Mosque & another v Hamisi & 3 others

the court they were approaching lacked jurisdiction to entertain the parties. 3. The Respondents support the decision of the trial court, maintaining that the award of costs is discretionary and that the trial court properly exercised that discretion. They argue that the court extensively addressed the issue on the award of costs in the ruling before allowing the preliminary objection filed with no costs being awarded. Issue for Determination 4. The main issue for determination is whether the appeal has merit. Determination 5. Being a first appeal, the court relies on a number of principles as set out in Selle and another v Associated Motor Boat Company Ltd & others [1968] 1 EA 123: "...this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence." 6. Similarly, the Court of Appeal in Gitobu Imanyara & 2 others v Attorney General [2016] eKLR stated that: "An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect." 7. It is firmly established that the issue of costs is a discretionary one that is 2|Page HOMA BAY ELC APPEAL NO. E031 OF 2025 -JUDGMENT

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awarded to a successful party. Also, this discretion must be exercised judicially and a party cannot be denied costs unless it can be shown that they acted unreasonably. 8. The law relating to costs is found in Section 27(1) of the Civil Procedure Act which provides that costs shall follow the event unless the court or judge, for good reason, orders otherwise. The provision vests discretion upon the court, but that discretion must be exercised judicially. It is trite law that where the court denies costs to a party who is successful in a suit, reasons for such decision must be clearly stated. 9. In the case of Supermarine Handling Services Ltd v Kenya Revenue Authority Civil Appeal No. 85 of 2006, the Court of Appeal stated: "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 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 sufficiency 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." 10. The Supreme Court further emphasized that the purpose of awarding costs is not to punish the unsuccessful party but to compensate the successful litigant for the expense incurred in vindicating his rights. Consequently, where a court departs from the general rule that costs follow the event, it is incumbent upon that court to assign clear, sufficient, and justifiable reasons. 11. In Devram Davji v Haridas Kalidas Dawda (1949) 16 EACA 35, the Court of 3|Page HOMA BAY ELC APPEAL NO. E031 OF 2025 -JUDGMENT

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Appeal of Eastern Africa noted that a successful defendant could only be deprived of his costs when it is shown that his conduct, either prior to or during the course of the suit, has led to litigation which but for his own conduct might have been averted. 12. That case was elucidating the passage from the judgment of Lord Atkinson in Donald Campbell and Co. Ltd v Pollak [1927] AC 732 at page 813 to the effect that: "...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 discretion of the Judge who tried the 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 Judge of the discretion he purported to exercise, the question of the sufficiency of those grounds for this purpose is entirely a matter for the Judge to decide, and the Court of Appeal would not interfere with his discretion in that instance." 13. From the record, the Respondents instituted the suit via a Petition claiming violation of human rights as stipulated under Article 23(3) of the Constitution of Kenya, 2010. 14. Conversely, the Appellants filed a preliminary objection dated 16th June 2025, necessitating the application and Petition to be struck out. The Appellants had been compelled to participate in proceedings before a court which ultimately found that it had no jurisdiction to entertain the matter. They also incurred costs in filing and prosecuting the Preliminary Objection which successfully disposed of the proceedings. 15. The authority for one to lay claim to costs is grounded in Section 27 of the Civil Procedure Act (Cap 21) of the Laws of Kenya. Osborn’s Concise Law Dictionary 4|Page HOMA BAY ELC APPEAL NO. E031 OF 2025 -JUDGMENT

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(Sweet & Maxwell, p. 74) defines costs to mean the expenses which a successful party/litigant is entitled to recover from the other side by reason of his being a party to legal proceedings, including court fees among others and the reasonable charges and fees of the solicitor and counsel. 16. However, in my perusal of the law regarding costs, I find Sub-sections (1) and (2) of Section 27 of the Civil Procedure Act very instructive: Section 27 (1): 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 those costs are to be paid, and to give all necessary directions for the purposes aforesaid. Section 27 (2): The fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of the powers in subsection (1); but 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. 17. The Court appreciates that the Respondents were entitled to approach the court and pursue their constitutional claims. However, once the court found that it lacked jurisdiction and struck out the Petition, the question of costs fell to be determined under Section 27(1) of the Civil Procedure Act. If the learned magistrate considered that the circumstances of the case warranted a departure from the general rule that costs follow the event, it was incumbent upon her to identify and give reasons for that departure. 18. My reading of the legal regime above regarding claims for costs after litigation indicates that the award of costs in any matter before a court of law is at the discretion of that court, even though Section 27(2) suggests that the award of costs of any action in court should follow the event, albeit with a rider that the 5|Page HOMA BAY ELC APPEAL NO. E031 OF 2025 -JUDGMENT

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court shall for good reason otherwise order. This position reflects the path taken in Departed Asians Property Custodian Board v Jaffer Brothers [1999] 1 EA 12, where it was held that a court has the discretion to award or deny a litigant costs. 19. The common law position is, however, that this discretion—like any other discretion—must be exercised judicially, and the judge ought not to exercise it against the successful party except for some reason connected with the case, a position affirmed in Ritter v Godfrey [1919] All ER Rep 714. 20. Caution is, however, called for while a court is exercising this power; for in Donald Campbell and Co. Ltd v Pollak [1927] AC 732 at page 813, it was observed: "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 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 the sufficiency of those grounds for this purpose is entirely a matter for the Judge himself to decide, and the Court of Appeal will not interfere with his discretion in that instance." 21. In Africa, the Supreme Court of Nigeria in African Continental Bank v Mnamani [1991] NWLR (Pt 186) 486 underscored the requirement that when a court exercises its discretion, it must do so judicially, pointing out that: "...the exercise of court’s discretion is said to be judicial if the judge invokes the power in his capacity as judge qua law. An exercise of discretionary power will be said to be judicial if the power is exercised in accordance with the enabling statutes. On the other hand, an exercise of discretionary power is said to be judicious if it arises or conveys the 6|Page HOMA BAY ELC APPEAL NO. E031 OF 2025 -JUDGMENT

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intellectual wisdom or prudent intellectual capacity of the judge as judex. The exercise must be based on sound and sensible judgment with a view to doing justice to the parties." 22. The Supreme Court of Uganda confirmed this position in Mwanga Kivumbi v Attorney General, Constitutional Appeal No. 06 of 2011 [2017] UGSC 4 (14 th February 2017), observing that the powers of a court to award costs under Section 27 of the Civil Procedure Act are discretionary, with the court seized of the matter ordinarily awarding costs to a successful party, and the only instance where such a party is denied costs being that such party's conduct caused the litigation. 23. The Ruling of the trial court, however, directed each party to bear its own costs without assigning any reason whatsoever for departing from the statutory principle that costs follow the event. The ruling does not identify any conduct on the part of the Appellants warranting a denial of costs, nor any other exceptional circumstance justifying the departure. 24. Where a court exercises its discretionary powers, an aggrieved party may appeal against that exercise of power, bearing in mind the fundamental legal maxim that "justice is not only done but must be seen to be done," leaving the assessment of whether the trial court exercised its discretion judiciously to the appellate court. 25. While this Court fully appreciates that costs are discretionary, discretion is never exercised in a vacuum. Judicial discretion must be guided by reason and principle. The absence of reasons renders it impossible for an appellate court to determine whether the discretion was exercised judiciously. 26. In the present appeal, the Respondents' claim was filed in the wrong court. The Appellants were compelled to file a preliminary objection. Having succeeded, resulting in the trial court striking out the Petition for want of jurisdiction, the 7|Page HOMA BAY ELC APPEAL NO. E031 OF 2025 -JUDGMENT

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Appellants became entitled, in the ordinary course contemplated under Section 27(1) of the Civil Procedure Act, to an award of costs. 27. This Court therefore finds that the failure by the learned trial magistrate to give reasons for not awarding costs lays a sound basis for this court to interfere with her discretion. The Appellants were entitled to the costs of the suit before the magistrate, and it was a misdirection for the magistrate to omit an award of costs without assigning reasons. 28. I refer to the work of Kuloba J (as he then was) in Judicial Hints on Civil Procedure (2nd Edition, p. 99): "The words 'the event' mean the result of all the proceedings to the litigation. The event is the result of entire litigation. It is clear however, that the word 'event' is to be regarded as a collective noun and is to be read distinctively so that in fact it may mean the 'events' of separate issues in an action. Thus, the expression 'the costs shall follow the event' means that the party who on the whole succeeds in the action gets the general costs of the action, but that, where the action involves separate issues, whether arising under different causes of action or under one cause of action, the costs of any particular issue go to the party who succeeds upon it. An issue in this sense need not go to the whole cause of action, but includes any issue which has a direct and definite event in defeating the claim to judgment in the whole or in part." 29. Costs are thus a means by which a successful litigant is recouped for expenses to which he has been put in fighting an action. Costs should not be used merely as a penal measure unless intended to purge non-compliance or non-adherence by a party with orders of the court or requirements under the law. Nonetheless, costs will be denied to the successful party if such party is guilty of misconduct, omission, neglect, or vexatious/oppressive conduct. 8|Page HOMA BAY ELC APPEAL NO. E031 OF 2025 -JUDGMENT

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30. On this, see the decision by the Supreme Court in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR, holding that costs are not used to penalize the losing party but to compensate the successful party for trouble taken in prosecuting or defending a suit. The legal policy behind these rules is that while an aggrieved party has the right to approach the court to have their rights vindicated, the party put in the wrong should bear the costs occasioned thereby. 31. I find this appeal merited, and it is hereby allowed. The Appellants are hereby awarded the costs of the proceedings before the trial court. 32. The Appellants shall also have the costs of this appeal. 33. It is so ordered. Judgment delivered, dated and signed at Homa Bay via teams’ platform at Homa Bay this 17th day of September 2026. JUSTICE J.W WANYONYI JUDGE In the Presence of; 1. Michael Kojo Otieno the 1st Respondent and representing the 2nd Respondent Present. 2. Shikuku for Adera for the Petition. 3. Court Assistant, Awino. 9|Page HOMA BAY ELC APPEAL NO. E031 OF 2025 -JUDGMENT

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