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ELCOtherEnvironment and Land Judicial Review Case 47 of 2019

JM (Minor Suing through his Next Friend and Father JMT) v Cabinet Secretary, Ministry of Tourism and Wildlife & another

Environment and Land Court at Nairobi
20 December 2022
LMLucy N. Mbugua
710 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to award legal costs in a settled compensation case, ruling that early settlement and a broken procedure meant each side pays its own way.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (L.N. Mbugua, J) dealt solely with the question of costs in a judicial review suit that had been marked as settled on May 5, 2022. The ex parte applicant, a minor suing through his father, had sought compensation following a snake bite incident of October 16, 2014. His claim was rejected by the County Wildlife Conservation and Compensation Committee but allowed on appeal by the National Environmental Tribunal on October 25, 2018, with an award of Ksh. 1,000,000. He then filed the present suit seeking mandamus to compel the Cabinet Secretary, Ministry of Tourism and Wildlife and the Attorney General to pay the compensation; the amounts were settled during the suit. The applicant filed a bill of costs, which was unopposed, and proceeded to taxation before the Deputy Registrar. The court found that the parties had been directed to agree on costs, failing which the court would determine them, and that the agreed fallback was filing submissions - not taxation. The respondents had engaged in settlement promptly from February 24, 2020, and the substantive judicial review motion was never heard. Exercising its discretion under section 27 of the Civil Procedure Act and guided by article 159(2)(c) of the Constitution, the court directed that each party bear their own costs of the suit, effectively refusing the applicant's claim for costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the ex parte applicant's bill of costs should be allowed by the Registrar
  2. 2.How costs of the suit, which was marked as settled, should be awarded

Key legal issues

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01

Whether the applicant was entitled to costs after the suit was marked as settled

Holding

The court declined to allow the bill of costs and ordered each party to bear their own costs, noting the respondents promptly engaged in settlement and no protracted litigation occurred

Reasoning

The court found the respondents entered the matter on February 24, 2020 and immediately pursued settlement; the matter never proceeded past the leave stage. Since the parties failed to agree on costs and the agreed fallback was submissions rather than taxation, the applicant's resort to the Deputy Registrar was unjustified. Applying article 159(2)(c) of the Constitution, the court exercised its discretion under section 27 of the Civil Procedure Act to make no award of costs.

p. 2

Legal principles established

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  • Costs are in the discretion of the court under section 27 of the Civil Procedure Act and fall within the court's inherent powers

Court orders

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  1. 1.Each party to bear their own costs of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

LM
majority

Wrote the judgment

Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court; costs determined under section 27 of the Civil Procedure Act and article 159(2)(c) of the Constitution

Relief refused

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Allowance of the applicant's bill of costs (taxation before the Deputy Registrar)

The parties had not agreed on costs and the fallback was submissions on costs, not taxation; the court found no basis for proceeding to tax

p. 2

Costs

Each party bears their own costs of the suit

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the circumstances and taking into account the provisions of article 159 (2) (c) of the Constitution, I direct that each party bears their own costs of the suit.
p. 2Final orders - costs
there were no protracted legal battles herein. Indeed the matter remained at the leave stage, thus the Substantive Judicial Review Motion did not see the light of day!
p. 2Basis for denying costs
That being the case, on what basis did the exparte applicant proceed to tax their bill of costs before the Deputy Registrar? None!.
p. 2Procedural impropriety in taxation

Issues in the judgment

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minor

Award figure internally inconsistent

material

Paragraph 2 suggests bill should be allowed, contradicting final order

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "JM (Minor Suing through his Next Friend and Father JMT) v Cabinet Secretary, Ministry of Tourism and Wildlife & another", Case Analysis (2022). Environment and Land Judicial Review Case 47 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15636/eng@2022-12-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.