Kenya Power and Lighting Company v David Gichuru M’mburugu & 1 other

4. As has been correctly submitted, costs are at the discretion of the court, by virtue of the provisions of section 27 of the Civil Procedure Act which states as follows:“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 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. 2.The court or judge may give interest on costs at any rate not exceeding fourteen per cent per MERU CIVIL APPEAL 201 OF 2024 Page 2 of 5

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annum, and such interest shall be added to the costs and shall be recoverable as such.” 5. It is thus clear that the rule of the thumb is that costs follow the event, unless there are good reasons for departing from that rule. 6. In Cecilia Karuru Ngayu vs Barclays Bank of Kenya and Another (2016) eKLR, the court cited the factors to be considered when determining the question of costs. The court held that: “To my mind, in determining the issue of costs, the court is entitled to look at inter alia (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 parties relationship and (viii) the reconciliation amongst need the between the to promote disputing parties pursuant to Article 159 (2) (c) of the Constitution. [11] In other MERU CIVIL APPEAL 201 OF 2024 wards the court may not only Page 3 of 5

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consider the conduct of the party in the actual litigation, but the matters which led to the litigation, the eventual termination thereof and the likely consequences of the order for costs.” 7. This point was reiterated in Jasbit Singh Rai and 3 Others vs Tarlochan Singh Rai and 4 others (2014) eKLR where the Supreme Court held as follows: “It is clear that there is no prescribed definition of any set of “good reasons” that will 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” examination of for such evolving a departure. practices on An this question, shows that, as an example, matters in the domain of public-interest litigation tend to be exempted from award of costs. 8. I have considered the matter, while I agree that the settlement of the decree in the lower court does not necessarily amount to conceding defeat, the respondents have been put to expense in defending the appeal and the application. MERU CIVIL APPEAL 201 OF 2024 Page 4 of 5

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9. As I stated earlier, the matter involved prolonged litigation after the appellant’s property was attached. The respondent had a decree in the lower court that he rightly proceeded to execute. That execution was challenged in this appeal. 10. In my view, the respondent is clearly entitled to costs and I do so order. 11. The stated costs to be agreed upon and if not agreed to be taxed. 12. Orders accordingly. Dated, signed and delivered at Meru this 16 th day of July 2026. H. M. NYAGA JUDGE. MERU CIVIL APPEAL 201 OF 2024 Page 5 of 5

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