https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11275

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CIVIL CASE NO. 201 OF 2024** **KENYA POWER AND LIGHTING COMPANY …………….. APPELLANT** **VERSUS** **DAVID GICHURU M’MBURUGU …………………..….……. 1ST RESPONDENT** **FRANCIS K. IKIBA ………………………………………… 2ND RESPONDENT** **RULING** 1. This appeal was marked as settled on 22/10/2025, after a prolonged period of litigation over the execution of the decree of the lower court. 2. The respondent had obtained a decree before the Small Claims Court. The appellant had sought to have the judgment therein set aside but the trial court dismissed the application. It is that court’s decision that prompted this appeal. 3. After the settlement of the appeal, the parties could not agree on the issue of costs, hence this ruling. 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 annum, and such interest shall be added to the costs and shall be recoverable as such.”** 1. 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. 2. 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 relationship between the parties and*(viii)*the need to promote reconciliation amongst the disputing parties pursuant to Article*159 (2) (c)*of the Constitution.******[[11]](https://kenyalaw.org/caselaw/cases/view/118168/%22%20%5Cl%20%22_ftn11%22%20%5Co%20%22) In other wards the court may not only 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.”*** 1. 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” for such a departure. An examination of evolving practices on this question, shows that, as an example, matters in the domain of public-interest litigation tend to be exempted from award of costs.*** 1. 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. 2. 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. 3. In my view, the respondent is clearly entitled to costs and I do so order. 4. The stated costs to be agreed upon and if not agreed to be taxed. 5. Orders accordingly. **Dated, signed and delivered at Meru this 16th day of July 2026.** **H. M. NYAGA** **JUDGE.**