REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU CIVIL APPEAL CASE NO. E226 OF 2025 BELINDA JEMOSOP KURUI ................................. APPELLANT VERSUS BERNARD TEIGUTWO ..................................... RESPONDENT RULING [1] The appeal herein was marked as withdrawn by consent of the parties on 2/10/2025. The parties were, however, unable to reach an agreement on the incidence of the costs of the appeal. [2] Mr. Kemboi, learned counsel for the Appellant, submitted that the appeal was withdrawn by agreement of the parties, the parties were not in agreement on the issue of costs and each party should bear its own costs of the appeal. [3] Mr. Wambeyi/Rubia, learned counsel for the Respondent, submitted that the Appellant should pay the Respondent's costs of the appeal since the Respondent attended court diligently. [4] The sole issue for determination is whether, upon the withdrawal of the appeal, the Appellant ought to bear the Respondent's costs of the appeal, or whether each party should bear its own costs of the appeal. 1|Page
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[5] The governing statutory provision is Section 27(1) of the Civil Procedure Act (Cap 21, Laws of Kenya) , which provides: "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 incident 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 that power: 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." [6] The proviso establishes that costs shall follow the event unless the court, for good reason, orders otherwise. The "event" in this case is the withdrawal of the appeal. A withdrawal ordinarily signifies that the Appellant has conceded the appeal, and the Respondent is therefore the successful party. [7] In Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] KESC 31 (KLR) , the Supreme Court of Kenya held: "It emerges that the award of costs would normally be guided by the principle that 'costs follow the 2|Page
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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 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." [8] The Supreme Court further emphasized in the same decision that although there is eminent good sense in the basic rule that costs follow the event, it is not an invariable rule, and the ultimate factor on award or non-award of costs is the judicial discretion. Costs do not, in law, constitute an unchanging consequence of legal proceedings. [9] In Sonko v Clerk, County Assembly of Nairobi City & 12 others (Petition 14 (E021) of 2021) [2022] KESC 17 (KLR) , the Supreme Court addressed a situation almost identical to the present one, where an appeal was withdrawn by consent but the parties could not agree on costs. The Court observed: 3|Page
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"Having so stated, we note from the record that the petition was withdrawn before the respondents had filed any responses or substantive submissions to the appeal save for the 7th respondent who filed a notice of preliminary objection. The appeal, at the time of withdrawal was not ripe for hearing. While applying the principle in Jasbir Singh Rai that costs normally follow the event, has an event to which costs would follow materialized? The answer is in the negative. Such an event has not happened... We therefore come to the conclusion that each party shall bear its costs before this court." [10] It is not in dispute that the appeal was withdrawn by agreement of the parties. This was not a dismissal after a full hearing on the merits. In such circumstances, the Respondent cannot be said to have "won" the appeal in the traditional sense. The event is not a victory on the merits but a consensual termination of the proceedings. [11] As the Supreme Court held in Sonko v Clerk, County Assembly of Nairobi City & 12 others (supra), where an appeal is withdrawn before it is ripe for hearing, before the respondents have filed responses or substantive submissions, the "event" to which costs would follow has not materialized. In the instant case, the appeal was withdrawn at an early stage, and the event that would have led to either party being successful did not crystallize. 4|Page
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[12] There is no evidence before this court of misconduct, bad faith, frivolity, or vexatious conduct on the part of either party. The Appellant exercised her constitutional right of appeal under Article 50(2)(q) of the Constitution of Kenya, 2010. The Respondent defended the appeal as is its right. Neither party has been shown to have caused unnecessary delay, sought frivolous adjournments, or acted in a manner that would justify a punitive costs order. [13] The Respondent's submission that it attended court diligently is noted. However, the mere fact of attendance does not, without more, entitle a party to costs of the appeal. Each party to litigation is expected to attend court when required. Diligent attendance is the norm, not an exceptional ground for awarding costs of the appeal. The Respondent has not demonstrated that it incurred extraordinary expenses or suffered any prejudice beyond the ordinary costs of defending an appeal. [14] For the reasons set out above, I order that each party do bear their own costs of this appeal. Delivered, dated and signed at Nakuru this 30th day of July, 2026. J. K. SERGON JUDGE In the presence of: Jamleck/Rutoh C/A 5|Page
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N/A for parties 6|Page
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