[2024] KELAT 514 (KLR)

Mangi & 170 others v Kenya Airports Authority & another (Tribunal Case E001 & E002 of 2023 & E001 & E002 of 2024 (Consolidated)) [2024] KELAT 514 (KLR) (7 March 2024) (Ruling)

Neutral citation: [2024] KELAT 514 (KLR)

Republic of Kenya

In the Land Acquisition Tribunal

Tribunal Case E001 & E002 of 2023 & E001 & E002 of 2024 (Consolidated)

NM Orina, Chair & G Supeyo, Member

March 7, 2024

Between

Dickson Kaingu Mangi & 8 others & 8 others

Appellant

and

Kenya Airports Authority

1st Respondent

National Land Commission

2nd Respondent

As consolidated with

Tribunal Case E002 of 2023

Between

Safari Charles Kitsao & 69 others & 69 others

Appellant

and

Kenya Airports Authority

1st Respondent

National Land Commission

2nd Respondent

As consolidated with

Tribunal Case E001 of 2024

Between

Sara Namwaya Namawanga & another & another

Appellant

and

Kenya Airports Authority

1st Respondent

National Land Commission

2nd Respondent

As consolidated with

Tribunal Case E002 of 2024

Between

Erick Zimba Ringa & 89 others & 89 others

Appellant

and

Kenya Airports Authority

1st Respondent

National Land Commission

2nd Respondent

Ruling

1. On 8th February 2024, parties to the above suits agreed, by consent, to compromise the suits on the following terms:a.That the 2nd Respondent to re-gazette the intention to compulsorily acquire land for the expansion of Malindi Airport;b.That the 2nd Respondent to conduct inspection jointly with the 1st Respondent to facilitate investigation on ownership of land;c.That the 2nd Respondent to prepare awards and issue Project Affected Persons (PAPs) with awards;d.That the 2nd Respondent to issue awards to the Project Affected Persons;e.That the 1st Respondent to provide facilitation to the 2nd Respondent to conduct the process above;f.That the process be conducted within six (6) months;g.That there be established a grievance redress mechanism by the Petitioners to handle local disputes in ownership.

2. The consent was adopted as an order of the Court, on the same day.

3. Following this Order, the Claimant’s counsel wrote to the Tribunal on 12th February 2024 seeking judgement for costs. The Tribunal set the matters for mention inter-partes on 20th February 2024 when the parties were directed to file Submissions. We have had occasion to read the Submissions and Authorities filed by the Appellants and the 1st Respondent and thus render ourselves as follows.

4. The Appellants have urged us to award costs. It is the Appellants’ contention that an attempt to agree on the costs has not succeeded and hence the Tribunal should exercise its discretion in awarding costs. In support of their plea, the Appellants have argued that pursuant to Section 27 of the Civil Procedure Act, “costs shall follow the event unless the Court for good reason orders otherwise.” According to the Appellants, therefore, there are sufficient reasons to support their case for costs.

5. The Appellants assert that the Tribunal should look at the conduct of the Respondents who did not file a single defence by the time the suit had been set down for hearing. Mr. Mogaka, on behalf of the Appellants urges us to take note of the economic situation of his clients who, he submits, are of meagre means and had incurred substantial amounts of money towards legal fees, valuation, travelling, accommodation and miscellaneous expenses in Malindi and Nairobi towards prosecuting their cases.

6. The 1st Respondent, on the other hand, strenuously opposes the Appellants’ plea for costs on a number of grounds. First, the 1st Respondent argues that the prayers sought in the Appellants’ appeals had not crystallised and hence it would be premature to make a determination on the issue of costs before the road map provided for in the consent order had been finalized.

7. Alternatively, the 1st Respondent argues that the consent orders adopted by the Tribunal signaled the end of the proceedings and the Tribunal cannot interfere with it except to set it aside in circumstances that would be appropriate, for instance, if there was fraud, undue influence, or a common mistake. The 1st Respondent urges the Tribunal to be guided by the pronouncement in Hirani vs. Kassam (1952) 19 EACA 131 where the court stated:Prima facie, any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action and those claiming under them and cannot be varied or discharged unless obtained by fraud, collusion or by an agreement contrary to the policy of the court or if the consent was obtained without giving sufficient material facts or in general for a reason which would be giving sufficient material facts or in general for a reason which would enable the court to set aside an agreement.

8. Further, the 1st Respondent argues that even if the Tribunal were to find that there is basis to consider the claim for costs, then the same would still not be merited. In this regard, the 1st Respondent asserts that “the event” which is contemplated by Section 27(i) of the Civil Procedure Act has not occurred. It is the 1st Respondent’s contention that none of the parties can claim success and, therefore, no party can lay claim to costs. According to the 1st Respondent, the event upon which costs should follow is yet to happen.

9. The 1st Respondent additionally argues that there is no quantum or subject matter that would form the basis for assessment of costs. This, the 1st Respondent argues, is because the process of verification of ownership and valuation of the property is yet to be done. Finally, the 1st Respondent reiterates its arguments that the Appellants are yet to be declared successful and, therefore, have no basis to claim costs. It is the 1st Respondent’s case that some of the Appellants may not succeed in getting any compensation.

10. The 2nd Respondent did not file submissions.

Analysis and Determination 11. From the outset, we note that the parties did not address costs in the consent orders adopted by the Tribunal. The 1st Respondent urges us to find that the consent orders signaled the end of the case and we cannot reopen the same unless we find that the agreement was vitiated by fraud, undue influence, or a common mistake. The proceedings, herein, are not aimed at varying the terms of the consent order as argued by the 1st Respondent rather to deal with an aspect that was not captured in the consent. Had the parties intended to deal with costs and include the same in the consent order, nothing would have been easier. Furthermore, it is not uncommon that parties can agree on the manner of compromising a suit but fail to agree on who bears the costs, a matter that would be left to court for determination.

12. It is a well settled principle that “costs follow the event” as enshrined in Section 27(i) of the Civil Procedure Act. The phrase is, however, broad enough to allow the exercise of judicial discretion in determining if “the event” has occurred that would necessitate the award of costs. It also goes without saying that this discretion must be exercised judiciously on a case-by-case basis where the court that has been called upon to make a determination considers all the relevant factors before making a determination.

13. Has there been an event? This suit was compromised on terms that were not necessarily what was prayed for by the Appellants. But isn’t that the nature of compromises in contentious suits? By reaching a compromise, it means that the parties to the suit have agreed on certain issues that would substantially or fully resolve the contention between them.

14. In this case, the main complaint by the Appellants is that the Respondents have failed to determine the Appellants’ interests or rights in or over the suit property. A determination of these interests would then kick start other processes of determining the compensation due to the Appellants, if any. It is true, as argued by the 1st Respondent that the consent order has not determined whether the process of compulsory acquisition undertaken by the Respondents was full of irregularities as alleged by the Appellants or that the Appellants have any interests on the land but we can’t ignore the import of the consent orders. A consent order to the effect that the Respondents are to undertake certain steps in the process of compulsory acquisition which would lead to the determination of the interests of the Appellants and compensation, if any, ended the dispute between the parties. It, therefore, cannot be said that the prayers sought in the Appeals had not crystallized, regardless of the eventual outcome of the roadmap agreed between the parties.

15. On the question of whether the Appellants are the successful party in this case, it is important to look at the circumstances of the case as a whole. The Appellants in the four cases against the Respondents sought declarations from this Tribunal to the effect that the Respondents had not complied with the law in the compulsory acquisition process for the Malindi Airport expansion project. Even thought the matters were not consolidated, they all related to the same project – expansion of the Malindi Airport. Whereas the outcome of the consent does not determine their interests in the suit property – a function of the 2nd Respondent, at the first instance, the consent recorded in these cases has directed the Respondents to take steps towards determining those interests.

16. While consent is an important factor in the determination of costs, in itself it does not disentitle a party of costs as noted by Judge F. Gikonyo in Morgan Air Cargo Limited v. Evrest Enterprises Limited [2014] eKLR. Judge Gikonyo also addressed the question of a successful party in the context of a consent as follows:…a successful party does not refer to a person who has been taken through rigorous and convoluted motions of litigation by the other party. Similarly, a party does not cease to be a successful party merely because he met little or no contest in his claim against the Defendant. He is a successful party because he is declared so by the Court after looking at the result of the entire litigation, which includes negotiations or steps which culminates to, and the recording of a consent thereto, conduct of the Plaintiff etc.

17. The particular circumstances of this case portray Appellants who are anxious to have their interests determined. They reached out to the Respondents, even before filing of these appeals to try resolve the matter out of court. The lack of action from the Respondents necessitated the filing of the cases which were compromised through consent. There is no doubt that the cases have pitted hundreds of destitute families (some of whom are vulnerable due to their age as was apparent when the Tribunal conducted an in-situ session in Malindi), against the Respondents. The Appellants have no doubt spent time and money in canvassing their interests until the consent order was issued. We do not find a reason that would disentitle the Appellants the costs of these suits. As stated in Orix Oil (Kenya) Limited v. Paul Kabeu & 2 Others [2014] eKLR:…the court should have been guided by the law that costs follow the event, and the Plaintiff being the successful party should ordinarily be awarded costs unless its conduct is such that it would be denied the costs or the successful issue was not attracting costs. None of those deviant factors are present in this case and the court would still have awarded costs to the Plaintiff, which I do.

18. The upshot of our analysis is that the Appellants were the successful parties and they are entitled to costs. Costs are hereby awarded to the Appellants, to be shared equally by the Respondents. If the parties fail to agree on quantum, the same will be taxed as per the law.

19. It is so ordered.

DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF MARCH 2024. ……………………… …………………………DR. NABIL M. ORINA - CHAIRPERSONMR. GEORGE SUPEYO -MEMBERIn the presence of:Achoka h/b for Adhoch for the 1st RespondentNo appearance for the Appellants and the 2nd RespondentCA: Everlyne K.