[2008] KEHC 1843 (KLR)
The court held that the applicant was entitled to costs because the respondent only paid the compensation sum after the judicial review proceedings were filed. The court exercised its discretion under Section 27 of the Civil Procedure Act to award costs to the applicant, finding that the proceedings were necessary...
Source-derived case information.
- Citation
- [2008] KEHC 1843 (KLR)
- Parties
- Applicant: Municipal Council of Eldoret; Respondent: Commissioner of Lands and Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 50 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Costs After Grant of Mandamus and Satisfaction of Claim
- Outcome
- Costs awarded to the applicant against the respondent.
- Legal Topics
- Judicial Review, Mandamus Orders, Costs Award, Land Acquisition Compensation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Municipal Council of Eldoret
Applicant
Commissioner of Lands and Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Costs After Grant of Mandamus and Satisfaction of Claim
Legal Issues
- 1 Whether the applicant is entitled to costs after the respondent satisfied the claim following the filing of judicial review proceedings.
- 2 Whether the court should exercise its discretion to award costs in favour of the applicant.
Ratio Decidendi
The court held that the applicant was entitled to costs because the respondent only paid the compensation sum after the judicial review proceedings were filed. The court exercised its discretion under Section 27 of the Civil Procedure Act to award costs to the applicant, finding that the proceedings were necessary to secure payment and that there was no justification for depriving the applicant of costs. The absence of the respondent's advocate at the hearing on costs did not affect the applicant's entitlement, as the respondent had an opportunity to be heard but failed to attend. The court emphasized that costs generally follow the event and that the applicant's action was the proximate...
Court Disposition
Costs awarded to the applicant against the respondent.
Orders
- Costs of the proceedings are awarded to the ex parte applicant against the respondent.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Misc. Application Case 50 of 2007
IN THE MATTER OF: AN APPLCIATION BY MUNICIPAL COUNCIL OF ELDORET FOR LEAVE TO COMMENCE JUDICIAL REVIEW PROCEEDINGS FOR ORDERS OF MANDAMUS:
AND
IN THE MATTER OF: THE LAND ACQUISITION COMPENSATION TRIBUNAL APPEAL NO. 2 OF 2007
AND
IN THE MATTER OF: SECTIONS 8 AND 9 OF THE LAW REFORM ACT AND ORDER LIII OF THE CIVIL PROCEDURE RULES:
RULING
I: Background
1. This matter brought under Judicial Review Proceedings filed on 24 October 2007 for leave concerns the Land Acquisition Compensation.
2. The Municipality Council of Eldoret were awarded 20 acres of land from LR. 77832 (part) that belonged to the Kenya Railways. The parcel of land is now known as Eldoret Municipality Council Block 10/11. The award once made the Kenya Railways Cooperation appealed, not being satisfied with this decision. The City Council of Eldoret came to be withdrawn the acquisition process with the Commissioner of Lands and the withdrawal of gazette notice 1399/02 and 1400/02.
3. They had deposited Ksh.5,884,519/90 towards the compensation to be paid with the Commissioner of Lands. This was to be released to them.
4. A consent to this effect was entered into by all parties concerned.
5. The Commissioner of Lands failed to pay the said compensation sum back to the Municipality Council of Eldoret. The council filed this Judicial Review seeking orders of Mandamus directed at the Commissioner of Lands and the Attorney General to release the said sum.
6. Leave was duly granted. On the day fixed for hearing of the notice of notice of motion application to the state had paid the sum back as required. Nonetheless the state objected to any costs being paid.
7. This court gave the parties an opportunity to attend to this court on 19 June 2008 at 9. 00 a.m. to submit on the issue of costs.
8. On the said day the advocate of the state was absent under order IXB r 3(a) Civil Procedure Rules the submission by the exparte applicant was heard.
II: Costs
8. The exparte applicant prayed for costs on the ground that if the Judicial Review proceeding had not been filed, no costs would have arisen. Though the issue of costs is at the courts discretion the court to accordingly award this.
III: Opinion
9. Under Section 27 of the Civil Procedure Act. Costs at the discretion of the courts.
Robert Mongare Ikoro
V
SS Metha & Sons Ltd
Hccc423/99
Anga’wa J unreported refers
10. I accordingly awards costs to the exparte applicant against the respondent.
DATED THIS 19TH DAY OF JUNE 2008 AT NAIROBI.
M.A. ANG’AWA
JUDGE
K.K. Katwa instructed by Katwa Kemboi & Co. Advocates for the applicant – present
Attorney General Advocate for the Respondent – absent