https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4264

Republic v Director of Surveys & another; Hodson (Ex parte Applicant) (Judicial Review Application E002 of 2025) [2026] KEELC 4264 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELC 4264 (KLR) Republic of Kenya In the Environment and Land Court at Kwale Judicial Review Application E002 of 2025 EG Nderitu, J July 9, 2026 IN THE MATTER OF: A DECREE ISSUED IN [MOMBASA] ELCC NO.474 OF 2009: NORKAN INVESTMENT LIMITED vs ALI KHAN ALI MUSES AND 2 OTHERS ON 14 NOVEMBER 2019 IN THE MATTER OF: A DECREE FOR RECTIFICATION OF THE REGISTRY INDEX MAP FOR KWALE/GALU KINONDO IN THE MATTER OF: THE GOVERNMENT PROCEEDINGS ACТ, САР 40, LAWS OF KENYA IN THE MATTER OF: THE FAIR ADMINISTRATIVE ACTION AСТ, САР 7L, LAWS OF KENYA AND IN THE MATTER OF: SECTION 13(5)(8) AND 14 OF THE ENVIRONMENT AND LAND COURT ACT, CAP 8D OF THE LAWS OF KENYA, THE CIVIL PROCEDURE ACT, CAP 21 LAWS OF KENYA AND CIVIL PROCEDURE RULES, 2010 (ORDER 53) Between Republic Applicant and The Director of Surveys 1st Respondent The County Surveyor, Kwale County 2nd Respondent The Attorney General 3rd Respondent and Norkan I Limitednvestments Interested Party and Simon Hodson Ex parte Applicant Ruling 1.Vide an ex-parte Chamber Summons Application dated 25th November 2026 brought under the provisions of Article 159 of the Constitution of Kenya, 2010, Sections 9 and 10 of the Fair Administrative Action Act, 2015, Order 53 of the Civil Procedure Rules 2010, Section 13 and 14 of the Environment and Land Court Act and all other enabling provisions of the law, the ex-parte applicant sought and was granted leave to apply for an order of mandamus, directed to the Respondents to compel them to implement the decree issued on 14 November 2019 in [MSA] ELCC NO.474 OF 2009 by rectifying the registry index map for Kwale/Galu Kinondo in terms of the decree. 2.Upon the grant of the leave, the applicant filed the substantive motion vide a Notice of Motion dated 3rd December 2025 and filed on even date. 3.On the 19th February 2026, directions on service of the motion were issued and a hearing date of 15th April 2026 set. The respondents were served on the 27th February 2026 (1st Respondent) and 12th March 2026 (2nd and 3rd Respondents). 4.When the matter came up on 15th April 2026, further direction on service on the interested party by substituted service were given. The learned State Counsel who was present for the Respondents was also given time to file response to the motion and the matter was fixed for mention on 2nd July 2026 to confirm compliance. 5.In compliance to the directions, the Respondents filed a replying Affidavit sworn by the 2nd Respondent on the 5th of May 2026 confirming compliance with the decree subject to the instant Judicial Review proceedings. He annexed a rectified Registrar Index Map as evidence of the compliance. 6.It was on account of this that when the matter came up for mention on 2nd July 2026 that counsel for the ex-parte applicant indicated to the court that the application had been overtaken by events. She nevertheless sought costs arguing that the proceedings had been necessitated by the Respondents failure to comply with the decree despite the effort to engage them prior to coming to court. Counsel submitted that the ex-parte Applicant incurred cost in filling and prosecuting the ex-parte leave application as not until after filing the substantive motion did the Respondents decide to comply. 7.The request for cost was opposed by the Learned State Counsel who argued that the Respondents complied with the decree averting the need for rigorous hearing and hence ought not be condemned to pay cost. This ruling is consequently on whether or not the ex-parte applicant ought to be awarded costs. 8.The Principle regarding costs under Section 27 of the Civil Procedure Act is that costs are discretionary and they follow the event unless a good reason to depart from the general principle is proffered. The same is to effect that;“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.”The governing principle on costs as contained in the above provision is that costs of and incidental to all suits shall be at the discretion of the court, and the court 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. The proviso to that subsection sets out the default mode; that costs shall follow the event unless the court, for justifiable reason, which the court is obliged to state, it otherwise orders. 9.The import of this provision has been the subject of consideration by the highest court in Rai & 3 others v Rai & 4 others (Petition 4 of 2012) [2014] KESC 31 (KLR) (4 March 2014) (Ruling) where the Supreme Court held;“Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant.” 10.In exercise of the discretion, the court must look at each case on its own merit and decide whether there are factor and circumstances that justify deviating from the general rule that ‘cost follow the event’. The Supreme Court in Rai & 3 others v Rai & 4 others (supra) stated;“It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation” 11.Courts of concurrent jurisdiction have in several authorities considered various other circumstances in exercise of the discretion. In Cecilia Karuru Ngayu v Barclays Bank of Kenya & another [2016] Eklr, the court reasoned that in determining the issue of costs, the following factors are to be considered:“the conduct of the parties; the subject of litigation; the circumstances which led to the institution of the proceedings; the events which eventually led to their termination; the stage at which the proceedings were terminated; the manner in which they were terminated; the relationship between the parties and the need to promote reconciliation amongst the disputing parties pursuant to Article 159 (2) (c) of the Constitution.” 12.The ex-parte applicant argued that he was forced to file the instant motion after the Respondents failed to comply with the decree of the court issued back on 14th November 2019 in Mombasa ELCC No 747 of 2009 despite repeated requests. He annexed several correspondences in his affidavit in support of the leave application. What is clear though is that save for the letter of 17th September 2025 forwarding a certificate of order against the Government to the 2nd Respondent none of the other correspondences, be they letters or email, were addressed to the Respondents. All the exhibited letters were addressed to the land registrar. The email correspondences were between the Advocates for the ex-parte applicant and the Interested Party. The 1st and 2nd Respondents do not feature in any of them. Even the 3rd Respondent- The Attorney General, who represents the 1st and 2nd Respondents, was not an addressee in any of the correspondences. It would appear that, over the year since the decree was issued, all efforts were employed towards having the land Registrar cancel the offending entries from the register and restore ownership of the suit land to the Interested Party. 13.From the ex-parte applicant’s own documents therefore, save for the 2nd Respondent who was one of the two addressees in the letter dated 17th September 2025, the rest of the respondents were only served with the substantive motion, the 1st Respondent on 27th February 2026 and the 2nd and 3rd Respondents on 12th March 2026. In less than 3 months by the 5th of May 2026 when the 2nd Respondent swore the Replying Affidavit, they had already complied with the decree. It cannot therefore be right to say that the Respondents had been served with the decree but declined to comply despite repeated requests as submitted by the counsel for the ex-parte applicant. 14.As at the time of compliance, the matter was still at its infancy. The substantive motion was yet to be listed for hearing. The Respondents complied promptly upon being served with the motion and averted rigorous hearing, hence saving on costs and time. 15.Worth noting also is that the Respondents are all Public offices. The 1st Respondent is the Director of Survey, the 2nd Respondent the County Surveyor Kwale county and the 3rd Respondent The Attorney General. Any award of cost would definitely be paid out of public funds. Would it be just and equitable in the circumstances enunciated herein to burden the tax payers with cost? This court’s answer is in the negative. The circumstances herein justify a departure from the general rule. This court finds that this is a proper case for an order that each party bears own cost and do so orders. DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS AT KWALE THIS 9TH DAY OF JULY 2026.HON. E.G NDERITU L JELC KWALEIn the presence of: -Ms Kivuva h/b for Mr Karega for the ApplicantM/s Ondieki h/b for M/s Kiti for the RespondentsC/A M/s Halima