Automated Summary
Key Facts
The case involves the Trustees of Eldoret Churches Urban Project Trust Fund (a non-profit health center) challenging the National Land Commission and others over costs awarded after the plaintiff withdrew a 2015 suit. The 2nd Defendant's counterclaim was struck out in 2022, and costs were taxed at Kshs.399,260. The court dismissed the application to revisit costs, ruling that the plaintiff had closed the stable after the horse had bolted by not objecting earlier. The final order is that each party bears their own costs.
Issues
- The court addressed whether the 2nd Defendant could claim costs after the Plaintiff withdrew the suit before hearing, referencing Section 27 of the Civil Procedure Act and the principle that costs typically follow the event. The analysis included considerations of whether a withdrawn suit constitutes an 'event' and the timing of the withdrawal relative to cost taxation.
- The court examined if a County Government (2nd Defendant) is legally entitled to claim costs as a party in a suit, particularly after the Plaintiff's withdrawal. This included evaluating the applicability of cost rules to public entities and whether such claims align with principles of public interest litigation and judicial discretion under Section 27 of the Civil Procedure Act.
Holdings
- The court ruled that despite the Plaintiff's non-profit status and public interest in operating a community health center, each party must bear their own costs in this case. This decision was made to avoid penalizing the Plaintiff's efforts to advance public interest litigation, while also recognizing the 2nd Defendant's right to costs in civil matters.
- The court disallowed the application to review the costs order because the Plaintiff failed to request a costs exemption at the time of withdrawal in 2018, and the application was filed four years later after the costs process had already been executed. The court emphasized that it lacks jurisdiction to overturn a concurrent jurisdiction judge's costs order unless through a review application.
Remedies
The court disallowed the application for review of costs but, considering the Plaintiff's status as a non-profit organization, ruled that each party shall bear their respective costs.
Legal Principles
The Environment and Land Court applied Section 27 of the Civil Procedure Act, which establishes that costs typically follow the event (the outcome of litigation) unless the court has good reason to deviate. The court emphasized that while costs are discretionary, they must be exercised judicially, not arbitrarily. It also referenced jurisprudence on public interest litigation, noting that such cases may exempt parties from cost awards to avoid deterring public benefit litigation. The ruling concluded that the Plaintiff's late application to review costs was not permissible, as the original order by Justice Ombwayo in 2018 remained valid under concurrent jurisdiction principles.
Precedent Name
- Harun Mwau and Others V. Attorney-General and Others
- Jasbir Singh Rai & 3 Others v. Tarlochan Singh Rai & 4 Others
- Raila Odinga and Others V. The Independent Electoral and Boundaries Commission and Others
- Samuel K. Macharia & Another V. Kenya Commercial Bank & 2 Others
- Joseph Oduor Anode v. Kenya Red Cross Society
- Amoni Thomas Amfry and another V. The Minister for Lands and Another
Cited Statute
- Civil Procedure Act
- Civil Procedure Rules
Judge Name
JM Onyango
Passage Text
- The Court observed that the Order for payment of costs having been made by my brother Justice Ombwayo, and considering that this is not an Application for review, I have no jurisdiction sit on appeal on an Order of a judge of concurrent jurisdiction.
- In matters concerning public-interest litigation, a litigant who has brought proceedings to advance a legitimate public interest and contributed to a proper understanding of the law in question without private gain should not be deterred from adopting a course that is beneficial to the public for fear of costs being imposed.
- For the above reasons I am constrained to disallow the Application. Considering the status of the Plaintiff/Applicant which is a non-profit making organization running a Health Centre for the benefit of the local community and that it gets donations from World Vision and the 2nd Defendant, each party shall bear their respective costs.