https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7631

Kariu Nyange Estate & another v Onyango & another (Suing as the legal representatives of the Estate of Charles Onyango Ochiel - Deceased) & another (Civil Appeal E123 of 2022) [2026] KEHC 7631 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 7631 (KLR) Republic of Kenya In the High Court at Nakuru Civil Appeal E123 of 2022 JK Sergon, J June 4, 2026 Between Kariu Nyange Estate 1st Appellant Njoro House 2nd Appellant and Syprose Achieng Onyango & Michael Okoth Ochiel (Suing as the legal representatives of the Estate of Charles Onyango Ochiel - Deceased) 1st Respondent Shelter Construction Limited 2nd Respondent Ruling 1.By a Notice of Withdrawal of Appeal dated 22nd September 2025, the Appellants wholly withdrew their appeal against the Respondents. 2.The only issue left for determination is the question of costs. This court directed the parties to agree on costs but negotiations did not yield any positive results. Both parties have made oral submissions, and as noted by this court, they remain unyielding on their respective positions. 3.Miss Nasimiyu for the Appellants submitted that although the appeal is withdrawn, costs should be awarded. No substantive reason was advanced for this departure from the general rule, save for the statement that the parties have "been unable to agree." 4.Mr. Mboga for the Respondents submitted that costs should be awarded to the Respondents. He further indicated that they are ready to proceed to tax their bill of costs. The Respondents’ position is that having been forced to defend the appeal, they should not be left out of pocket following its unilateral withdrawal by the Appellants. 5.The law governing costs is well settled. Section 27(1) of the Civil Procedure Act (Cap. 21) 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 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 the 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 for good reason otherwise order." 6.The "event" in a withdrawn appeal is the successful termination of the litigation in favour of the Respondent. The Appellant, by withdrawing, has effectively conceded that the appeal cannot proceed. 7.The discretion to depart from the general rule must be exercised judiciously, and only where "good reason" is shown. The burden of demonstrating good reason lies with the party seeking to avoid paying costs, in this case, the Appellants. 8.The Appellants have offered no good reason why this court should deny the Respondents their costs. The mere fact that parties failed to agree on a settlement does not constitute a good reason. Settlement negotiations are encouraged, but their failure does not penalise a successful respondent. 9.In Gohil v Wamai [1983] eKLR, the Court of Appeal observed that where a party is granted leave to defend, it would be inappropriate to award costs of the application. Instead, costs should be in the cause or reserved. That principle, however, presupposes that the matter will proceed to trial. Here, the Appellants have not sought leave to defend anything. They have pulled the plug on the entire appeal. The Respondents have been put to expense for no return. There is no trial on the horizon. The reasoning in Gohil does not assist the Appellants. 9.I have also considered whether the Respondents might have done something to lure the Appellants into pursuing this appeal. The Court of Appeal in Wakf Commissioners v Mohamed Bin Umeya Bin Abdulmaji Bin Mwijabu [1983] KLR 346 reminded us that this is a relevant consideration when assessing costs. Upon a careful review of the record, I find no evidence whatsoever that the Respondents encouraged or provoked this appeal. The Appellants acted on their own volition when they filed the appeal, and they acted on their own volition when they withdrew it. The Respondents simply stood their ground to defend it and they cannot be penalized for that. 10.The Court of Appeal in Theuri v Law Society of Kenya [1984] eKLR set out a useful test for situations where a party seeks a waiver of costs: the court must ask whether the appeal is not without a reasonable possibility of success. The Appellants, by withdrawing the appeal without any explanation, have effectively conceded that their appeal had no such reasonable prospect. They cannot now seek waiver of costs in their favour. 11.Similarly, in the case of Nyakinyua and Kang'ei Farmers Company Ltd v Kariuki & Gathecha Resources Ltd (No 2) [1984] KLR 104, it is affirmed that the court has discretion over costs, particularly where a claim fails in one respect and succeeds in another. However, that is not situation here. In this case, the Appellants have failed completely. There is no partial success to speak of. The discretion, therefore, must be exercised in favour of the Respondents. 12.Beyond the authorities cited above, there is a simple matter of fairness. The Respondents have incurred legal expenses in defending an appeal that the Appellants have now withdrawn. They have instructed counsel, filed papers, and attended court. To leave them to bear those expenses would be to visit upon them a cost that properly belongs to the Appellants, who chose to start this process and then chose to abandon it. Justice demands that the Appellants reimburse the Respondents. 11.This court is mindful that costs should not be awarded as a punishment, but as a just indemnity to the successful party. In this case, the Respondents are the successful party following the withdrawal. 12.In light of the foregoing, this court makes the following orders;a)The Appellants shall bear the costs of this appeal to be paid to the Respondents.d)The Respondents are at liberty to file a bill of costs for taxation before the Deputy Registrar. DATED, SIGNED AND DELIVERED AT NAKURU THIS 4TH DAY OF JUNE, 2026.........................J. K. SERGONJUDGEIn Presence of:Jamleck/Rutoh CAMiss Kirui holding brief for Mboga for RespondentMiss Nasimiyu for the Appellant