https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3760

Otieno v Oyugi (Environment and Land Miscellaneous Case E047 of 2025) [2026] KEELC 3760 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEELC 3760 (KLR) Republic of Kenya In the Environment and Land Court at Homa Bay Environment and Land Miscellaneous Case E047 of 2025 JW Wanyonyi, J June 12, 2026 Between George Otieno Plaintiff and Eunice Otieno Oyugi Defendant (Being an Appeal from a Ruling dated 5th September 2025 delivered by M Agutu (PM) in Mbita CMC ELC No. E004 of 2022) Ruling 1.​George Otieno Pambo, the Applicant herein acting through the firm of M.W Magara, has filed an application dated 11th September 2025 under Section 1A & 3A of the Civil Procedure Act, Cap 21 Laws of Kenya seeking for the following Orders:i.That the Honourable Court be pleased to grant an Order of stay of execution of the ruling of the taxing master, HON. M. A. Agutu,P.M Mbita Law Court dated and delivered on the 5th day of September 2025 and all the subsequent orders emanating therefrom.ii.​That the Honourable Court be pleased to dismiss, set aside and or vary the ruling of the taxing master Hon. M. A. Agutu,P.M Mbita Law Courts dated 5th September 2025 and all subsequent Orders emanating therefrom.iii.That costs of the application be in the cause. 2.The application is based on 13 grounds summarized as follows:‘’That the Respondent filed Mbita ELC Misc. Application number E004 of 2022 against the Land Registrar and Surveyor, and five (5) Interested parties where the Applicant was the 5th Respondent; that application was heard ex-parte by Hon. Moseti; the ruling granted an order directing the defendants to Survey the interested party parcel of land without participation ; that according to the ruling and subsequent order issued on 29th December2022 costs of the application were "dispensed and, that notwithstanding, the respondent filed a bill of costs dated 28th April 2025, which was assessed at Ksh 45,800/-.The said bill of costs was assessed by Hon. M. A. Agutu, P.M. Mbita Law Courts who delivered a ruling on the 5th September 2025, whereby the same was taxed at Ksh 28,600/- without stating from which ruling the order emanated from. Being dissatisfied with the said ruling he prefers a reference to this Honourable Court for review with a view of setting aside same, that the respondent is not entitled to costs, that HON. M. A. AGUTU, P.M Mbita erred in law, principle and fact by assessing bill of costs when no order had been made by her predecessor; that the Orders were made ex-parte without service ; that Costs were assessed against the 5th interested party only to the exception of the rest, and lastly,that in the interest of justice and for protection of the applicants' right to a fair trial he prays that the ruling be dismissed, set aside or varied. 3.He has likewise sworn an affidavit in support of the application to which he has attached a copy of the ruling. Directions On Compliance 4.​On 21/10/2025 parties' Counsels representing both parties were present before Hon. Justice Nyagaka who gave directions on compliance by both parties. 5.On 3/12/2025, both Counsels, intimated to the Court that they had complied, and on request the Court directed that the Lower Court file be availed. A mention date was then fixed. 6.​Subsequent to that, the Counsels appeared and upon Court confirming availability of the Lower Court file, a Ruling date was given. Reply By The Responsent. 7.​I have gone through the records and seemingly I have had difficulties in tracing the response filed by the Respondent as earlier intimated. However, I have stumbled upon submissions filed dated 18/11/2025. However, if that is how the Respondent opted, I will also abide by the submissions filed. Applicant's Submissions 8.The Applicant's Counsel filed submissions dated 4th November 2025 reiterating the contents of the application. He maintains that the Respondent is not entitled to costs as same was dispensed with. He relies on the authority of Muyuma versus Kavera ELC No. 7 of 2021 KEELC 680 (KLR) where it was stated that for execution to take place, there must be a valid decree on record. Respondent's Submissions 9.The Respondent states that counsel for the applicant is misleading the Court since the bill emanated from his application dated 7th January 2024 in Mbita ELC Number 4 of 2022 seeking for stay; that subsequently Counsel for the Respondent filed another application for striking out the said application as Counsel who drew same had no valid practicing certificate and that on 31/7/2024 the application dated 9th April 2024 was allowed inclusive of costs. Issues For Determination. 10.(a)Whether the application is properly placed before this Court.(b)Whether the taxing master properly exercised her discretion in assessing costs. 11.​The procedure for the challenge of a taxing master's decision is provided under Rule 11 of the Advocates Remuneration Order which gives an aggrieved party 14 days to request for written reasons from the taxing Master. 12.Upon giving reasons, the objector may apply to a Judge in chambers by Chamber Summons. 13.The Applicant in this case made an application by way of notice of motion challenging the decision of the taxing master. 14.Though the procedure is not the designated one, nevertheless, it is not fatal, and this court declines to address the said violation as it has a duty of according justice to all parties before it. 15.​Nevertheless, and the foregoing notwithstanding, the principles of varying or setting aside a taxing master's decision were enunciated in the decisions of First American Bank of Kenya v Shah & Others (2002) EA 64 and Joreth Ltd versus Kigano and Associates (2002) 1 EA 92, where the Court held that a taxing master's judicial discretion can only be interfered with when it was established that there was an error of principle, that the fee awarded is manifestly excessive for such an inference to arise, and where discretion is exercised capriciously and in abuse of the principle application of the correct principles of law regarding award of costs by the Court. 16.​I likewise find refuge in the case of Mohamed Safi versus Mohamed Juma & four (4) Others Civil Appeal 7 of 2003, at Malindi, where Justice Ombija held:​"The application was opposed by the Respondent who filed grounds of opposition dated 18th July 2007. The respondent relied on the said grounds and by way of submissions argued that costs is at the discretion of the Court. There is no evidence that the Court intended to award costs and inadvertently omitted to do so." 17.Justice Muchelule sitting at Thika in Kibiru v Mwaniki & 2 others (Civil Appeal 37 of 2023) [2024] KEHC 10417 (KLR) (23 August 2024)held that ;“The 3rd applicant has premised its application for review on an error apparent on the face error being that there was a failure to make an award of costs. An award of costs is the discretion of the Judge as brought out in section 27 of the Civil Procedure Act and therefore it cannot be termed as an error apparent on the face of the record when a court fails to award a party. Costs of the suit if the 3rd applicant is aggrieved by the Court failing to make an award the avenue to persue is an appeal and not seek review”. 18.In the case of Mohammed & Another versus Kenya Copyright Board & 2 Others Kenya Association of Music Producers & 2 Others (Interested Parties) (2025) KEHC 4229 (KLR) the Court held as follows:“Section 27 of the Civil Procedure Act provides that award of costs isIn the discretion of the Court, with the general principle being that 'costs follow the event' unless the Court, for good reasons, orders otherwise. The discretion must however be exercised judiciously.’’ 19.In Rai & 3 others versus Rai & 4 others [2014] KESC 3 (KLR) the Supreme Court emphasized that while costs normally follow the event, Courts have the discretion to depart from this principle for compelling reasons, including the conduct of the parties and the stage at which the withdrawal occurs. 20.Costs are in the discretion of the Court, yet follow the event. See The Halsbury Laws of England (Re-Issue) [2010] Vol 10 Paragraph 16 that "The Court has discretion as to whether costs are payable by one party to another, the amount of those costs, and when they are paid. Where costs are in the discretion of the Court, a party has no right to costs unless and until the Court awards to him, and the Court has an absolute and unfettered discretion to award or not to award them. The discretion must be exercised judicially; it must not be exercised arbitrarily but in accordance with reason and justice." (Emphasis added) 21.On irregular service, I rely on the case of Remco Ltd versus Mishy Jadva Parbat Company Limited(2002) 1 EA 233 where it was held that failure of proper service renders a judgment irregular and the Court has no discretion but to set it aside. 22.The applicable principle governing setting aside ex parte decisions were articulated in the case of Patel versus EA Cargo Handling Services Ltd (1974) EA 75 where the Court held that the main concern is to do justice to the parties and that the discretion should be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake. B. Whether The Taxing Master Properly Exercised Her Discretion In Awarding Costs. ​23.Based on the above presentation of issues by Counsels, consideration of decided cases and the my own analysis , I note that Courts are usually reluctant to interfere with exercise of discretion unless it appears that the taxing Master has not exercised his discretion judicially and has exercised it improperly, for example, by disregarding factors which he/she should have properly considered or he had failed to bring his mind to bear on the question in issue, or he has acted on a wrong principle. The Court will also interfere where it is of the opinion that the taxing Master was clearly wrong. 24.I have carefully gone through the proceedings and note that though Counsel for the applicant refers to the Order of 29th December, 2022, I there is no such record. 25.The one and only entry that relates to that period is on 28thDecember, 2022 and as alluded by Counsel, Costs were dispensed with in terms of the application that was presented to the court. ​26.I have gone a step further to peruse the events of 31st July, 2024 where the matter came up for hearing of a notice of motion dated 9th April, 2024 and Counsel indicated that the 5th Interested, who is the applicant, was duly served. ​27.Since the application was unopposed the court allowed it as prayed. 28.I have also looked at prayer (3) of the application and I note that costs for the application were sought for. ​29.Upon allowing the application a bill of costs was filed, objection was tendered and a ruling delivered on 5th September, 2025. 30.The taxing master observed that the 5th Respondent never made an application for review of the purported Order. 31.I have gone through the bill of Costs and the same covers the period 21/2/2024 to 31/7/2024. It has no correlation to the Order made on 28/12/2022. 32.I believe that in opposing the bill Counsel acted on the erroneously impression that costs related to the application dated 16th November, 2022 which application had no issue as purported. ​33.I find that the reference has not disclosed any misgivings on part of the taxing Master. 34.My wise Counsel to Counsels representing parties is that they ought to ensure that they go through the file so as to appreciate the contents thereof before filing any application that may have grave implications on an innocent litigant. 35.I therefore find that the application is misplaced and does not meet the threshold for setting aside. 36.The end result is that the application before Court is incompetent and is hereby dismissed with costs to the respondent.It is so ordered. RULING DATED AND DELIVERED VIRTUALLY ON 12TH JUNE 2026,In the presence of;Mr. Odhiambo for the Respondent – presentMr. Magaro for the applicant – Absent.Court Assistant, Ms. Awino.JUSTICE JOHN WALTER WANYONYI-JUDGE