[2021] KEELC 1118 (KLR)
The court held that the applicant, having succeeded in the suit through a consent judgment, is entitled to costs as there were no good grounds presented by the respondent to depart from the general rule that costs follow the event. The court emphasized that costs are discretionary but should ordinarily be awarded to...
Source-derived case information.
- Citation
- [2021] KEELC 1118 (KLR)
- Parties
- Applicant: Robert Nyonga Angatia; Respondent: Aggrey Taikosh Azelwa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 158 of 2016
- Procedural Posture
- Originating Summons / Ruling on Costs After Consent Judgment
- Outcome
- Applicant awarded costs of the suit.
- Legal Topics
- Adverse Possession, Costs Follow Event, Consent Judgment, Discretion on Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Nyonga Angatia
Applicant
Aggrey Taikosh Azelwa
Respondent
Procedural Posture
Originating Summons / Ruling on Costs After Consent Judgment
Legal Issues
- 1 Whether the applicant is entitled to costs following settlement of the suit by consent.
- 2 Whether there are good grounds to depart from the general rule that costs follow the event.
Ratio Decidendi
The court held that the applicant, having succeeded in the suit through a consent judgment, is entitled to costs as there were no good grounds presented by the respondent to depart from the general rule that costs follow the event. The court emphasized that costs are discretionary but should ordinarily be awarded to the successful party unless there are compelling reasons to the contrary, which were absent in this case. The applicant incurred expenses in prosecuting the suit, and the respondent did not provide any justification for denying costs. Accordingly, the applicant was awarded the costs of the suit.
Court Disposition
Applicant awarded costs of the suit.
Orders
- The applicant is entitled to the costs of the suit.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT ELDORET
ELC CASE NO. 158 OF 2016
ROBERT NYONGA ANGATIA................................................................APPLICANT/PLAINTIFF
-VERSUS-
AGGREY TAIKOSH AZELWA.........................................................RESPONDENT/DEFENDANT
RULING.
[PURSUANT TO ORDER NO. 4 OF THE CONSENT DATED 1ST NOVEMBER, 2018]
1. The Applicant approached the court through the originating summons dated the 10th June 2016, under Order 37(7) of the Civil Procedure Rules, claiming he was entitled to one and half (1½) acres of the property known as Kakamega/Sergoit/351 by dint of adverse possession, having lived on the property since 1997.
2. The suit was set down for hearing on various dates including the 1st November, 2018 when it was settled by consent leaving only the issue of costs for determination by the court. That pursuant to the consent that written submissions on the issue of costs be filed, the learned counsel for the Applicant and Respondent were granted timelines to comply but only the counsel for the Applicant filed their submissions dated the 14th February, 2019. The Applicant prays for costs and urges the court to be minded that despite the issue of costs being discretionary, they normally follow the event.
3. That the court is minded of the decision of the High Court in Cecilia Karuru Ngayu v Barclays Bank of Kenya and another (2016) eKLR, wherein the court speaking on the general rule stated that “the general rule that costs should be awarded to the successful party, should not be departed from without the exercise of good grounds for doing so.”
4. That further, Judicial Hints on Civil Procedure 2nd Editionby Justice (Retired) Richard Kuloba, states at page 99 that the expression “the costs shall follow the event” means that the party who on the whole succeeds in the action, gets the general costs of the action.
5. That in this suit, no good grounds have been presented by the Respondent to warrant the court to depart from that accepted general rule on costs. That the Applicant must have incurred expenses in instructing counsel, filing the originating summons and pursing its prosecution to a successful ending, albeit through a consent.
6. That in view of the foregoing, the court therefore finds and orders that the Applicant is entitled to the costs of the suit.
Orders accordingly.
DATED AND VIRTUALLY DELIVERED THIS 10TH DAY OF NOVEMBER, 2021.
S. M. KIBUNJA
ENVIRONMENT AND LAND COURT JUDGE
IN THE PRESENCE OF;
APPLICANT/PLAINTIFF: ABSENT
RESPONDENT/DEFENDANT: ABSENT
COUNSEL: M/S MORAA FOR MOMANYI FOR APPLICANT AND
MR. OMBOTO FOR RESPONDENT
CHRISTINE: COURT ASSISTANT