https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5079

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT HOMA-BAY** **ELC CIVIL APPEAL NO E005 OF 2023** JOHN ANDIEGE AWINO ZADOCK ANDIEGE………………………………………………..APPELLANTS **VERSUS** RICHARD AMAYO OGOSI (The Administrator to the estate of WOSHINGTON OGOSI ADONGO) ..............................RESPONDENT **JUDGMENT** *(Being appeal from the judgement/Decree of Hon. B. OMWANSA, SPM dated 2nd August, 2023, in the original OYUGIS SPM ELC NO.29 OF 2019 (Formerly MIGORI ELC NO. 67 OF 2017)* 1. This is a first appeal arising from the Judgment of the Senior Principal Magistrate delivered on 2nd August 2023 in Oyugis Senior Principal Magistrate's Court ELC No. 29 of 2019 (formerly Migori ELC No. 67 of 2017). 2. By a Memorandum of Appeal dated 7th August 2023, the Appellants challenge only the decision of the trial court on costs. The substantive findings on liability and the counterclaim are not contested. Consequently, the appeal is confined to the learned trial magistrate's exercise of discretion in directing that each party bears its own costs notwithstanding that the Respondent's suit was dismissed while the Appellants' counterclaim succeeded. 3. The trial court entered judgment in favour of the Appellants on the counterclaim by declaring them entitled to 0.6 hectares out of land parcel Kabondo/Kakangutu East/486, ordering subdivision and transfer thereof, issuing a permanent injunction in their favour and directing that each party bears its own costs. **The Appeal** 1. The Appellants contend that the learned magistrate erred in principle by denying them costs after they had successfully defended the Respondent's claim and substantially succeeded in their counterclaim. They argue that the Respondent instituted proceedings which ultimately failed, thereby compelling them to incur legal expenses which ought to be compensated. 2. The Respondent supports the decision of the trial court, maintaining that the award of costs is discretionary and that the trial court properly exercised that discretion. **Issue for determination.** 1. The main issue for determination is whether the appeal has merit. **Determination** 1. 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] 1EA 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.”** 1. Similarly, the Court of Appeal in Gitobu Imanyara & 2 others vs 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”.** 1. It is firmly established that the issue of costs is a discretionary one that is awarded to a successful party. Also, this discretion must be exercised judiciously and a party cannot be denied costs unless it can be shown that they acted unreasonably. 2. 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. 3. 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.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”.** 1. From the record, the Respondent instituted the suit claiming exclusive ownership of the suit property and sought declaratory orders, eviction of the Appellants, permanent injunction and damages for trespass. The trial court dismissed the Respondent's entire suit. 2. Conversely, the Appellants not only successfully defended the suit but also succeeded in their counterclaim. They obtained a declaration of entitlement to the disputed portion, an order compelling subdivision and transfer, and a permanent injunction protecting their occupation. In every practical sense, they emerged as the successful litigants. 3. The judgment 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 judgment does not identify any conduct on the part of the Appellants warranting denial of costs, nor does it point to any public interest consideration, partial success or other exceptional circumstance justifying the departure. 4. 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. 5. In the present appeal, the Respondent's claim was wholly unsuccessful. The Appellants were compelled to defend that claim and further prosecute a successful counterclaim in order to establish their rights. Having succeeded in both respects, they became entitled, in the ordinary course contemplated under Section 27(1) of the Civil Procedure Act, to an award of costs. 6. This Court therefore finds that failure by the learned trial magistrate to give reasons for not awarding costs despite defending the claim and further prosecuting a successful counterclaim, lays a sound basis for this court to interfere with the discretion of the learned magistrate. The appellant was entitled to costs of the suit before the magistrate. It was a misdirection for the magistrate to omit award of costs without giving reasons. 7. I find this appeal merited and it is hereby allowed. 8. The appellant is hereby awarded the costs of the suit and counterclaim in the court below and in this appeal. 9. The file is closed. Judgment dated and delivered at Homa Bay this 21st day of July 2026. In the presence of; * 1. Bunde J.O for the Applicant-Present 2. Owino for the Respondent -Absent. 3. Court Assistant; Ms. Awino. JUSTICE J. W WANYONYI-JUDGE 21/7/ 2026