Lawrence Nyangito T/A Nyangito &associates Co. Advocates v Lucy Wahito Thairu & 2 others

4. The applicant avers that he was enjoined maliciously in the appeal before this court. That he was not a party to the suit at the lower court but an officer of the court as he was representing the 1st Respondent at the time. 5. The applicant states that he has been greatly traumatized and subjected to serious mental anguish and great embarrassment before the court and his colleagues in the profession while in the course of defending himself against these proceedings. 6. The application is opposed by way of the 1st Respondent’s Replying affidavit dated 4th June 2025 in which she avers that the application before this court is devoid of merit. 7. The 1st Respondent further argues that the Applicant has not met the threshold for review as set out under order 45 Rule 1 of the Civil Procedure Rules for review. 8. The 1st Respondent filed submission dated 4th June 2025. Determination 9. I have read the pleadings of both the Applicant and the 1st Respondent, the submissions and the authorities they are relying on and the main issue for determination is whether the Applicant has met the threshold for review of the orders given by this court on 18th January 2024. Review in Law of Succession Act is guided by Order 45 of the Civil Procedure Rules which provides as follows: “ (1) 10. Any person considering himself aggrieved— (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay. The applicant seeks for Partial Review of the court’s orders regarding costs. Section 27(1) of the Civil Procedure Act provides that the award of costs is the discretion of the court, with the general principle being that "costs follow the event" unless the court, for good reason, orders otherwise. This discretion must, however, be exercised judiciously. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR, as follows: “ (18) It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16511/eng@2025-09-16 2

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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, before, during, and subsequent to the actual process of litigation.... Although there is eminent good sense in the basic rule of costs– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases.” The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say: “ It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown.” 11. “Good reasons” that justifies departure from the general rule that ‘costs follow the event” will vary from case to case. The court in Rai & 3 others v Rai & 4 others supra observed that: “ There was no prescribed definition 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 show that matters in the domain of public-interest litigation tend to be exempted from the award of costs”. 12. This is exactly what transpires in probate matters. From the jurisprudence in these particular areas of law, 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. Thus, the exercise of judicial discretion in awarding costs must be guided by established jurisprudence to ensure fairness, reasonableness, and adherence to justice. Costs should not be punitive in nature. The Applicant in his supporting affidavit seeks costs from the 1st Respondent for the “embarrassment caused before this court and his colleagues” and not as compensation for the expense incurred during litigation. This is a fete that aims at awarding costs as a punitive measure. 13. The decision not to award cost to the applicant was intentional and born out of the history of this matter and also in consideration that the applicant and the 1st respondent had had a prior engagement as advocate and client before their relationship went south. It was also in consideration of the nature of the dispute before the court in which litigation is still pending over the burial of a body which for years now still remains in the morgue. 14. The court, under the circumstances, exercise its discretion not to award costs in the relevant application. The court has no reason to change that discretion. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16511/eng@2025-09-16 3

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15. I therefore find no merit in the application dated 16th February 2024 and the same is dismissed with no orders as to costs. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 16TH DAY OF SEPTEMBER 2025 ________________ E.K. OGOLA JUDGE In the presence of: M/s Okumu holding brief Nyangito …………………………………. for the Applicant Mr Esai …………………………………………………………………… for the 1st Respondent Gisiele ……………………..………….…………………………..……………….. Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16511/eng@2025-09-16 4

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