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ELCPartially AllowedNot stated in the judgment (formerly Mombasa ELC Petition No. 2 of 2020, transferred to ELC Kwale)

Attorney General v Boma (Suing as the Administrator of the Estate of the Late Lawrence Mulisho Ndurya) & 8 others (Environment and Land Petition 20 of 2021) [2025] KEELC 5822 (KLR)

Environment and Land Court
28 May 2025
2,385 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kwale court ordered the Attorney General to pay a petitioner's legal costs after finding government lawyers failed to actively follow their own court case.

What this practically means

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Executive summary

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The Attorney General, as Applicant, moved the Environment and Land Court at Kwale by Notice of Motion dated 3rd December 2024 seeking to arrest a judgment scheduled for 27th March 2025, to reopen the Respondents' case, and to be allowed to file a response and submissions to an amended Petition. The Applicant complained that after transfer of the matter from the ELC at Mombasa (formerly ELC Petition No. 2 of 2020) to Kwale, its office could not trace the file; the Petitioner allegedly failed to serve documents, including the amended Petition and submissions, and relied on a service affidavit the Applicant contended was falsified. When the application came up on 27th March 2025, counsel entered a consent allowing the application, leaving only the issue of costs for the court. Both sides were directed to file submissions on costs under Section 27 of the Civil Procedure Act but none complied. Examining its own record, the court found that State Counsel from the Attorney General's office attended mentions on 22nd January 2024, 18th March 2024 and 3rd December 2024, and the judgment date was issued in her presence, contradicting the claim of ignorance of the proceedings. The court held the Applicant was not proactive and, applying the principle that costs follow the event, awarded the costs of the application to the Petitioner against the Attorney General. The application was allowed by consent and judgment was fixed for 24th July 2025.

Questions the Court framed

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

  1. 1.Whether the Honourable Attorney General should be subjected to paying costs of the application dated 3rd December 2024 or not

Key legal issues

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01

Whether costs of the application should be awarded against the Attorney General

Holding

Costs of the application were awarded to the Petitioner against the Attorney General, who was found not to have been proactive in the litigation.

Reasoning

The court examined its own record and found State Counsel attended mentions on 22nd January 2024, 18th March 2024 and 3rd December 2024, and the judgment date was issued in her presence. The claim that the office was unaware of the proceedings after transfer to Kwale was found untruthful. Since the matter had reached judgment stage through effort and expenditure, the 'costs follow the event' principle applied, and arresting judgment through the consent did not displace that outcome.

p. 5
02

Whether the judgment should be arrested and the respondent's case reopened

Holding

By consent of the parties, the application was allowed and the judgment arrested; the consent left only costs for determination.

Reasoning

On 27th March 2025 counsel informed the court they had entered a consent allowing the application dated 3rd December 2024 save for the issue of costs payable by the Attorney General. The court adopted the consent and only determined the contested costs issue.

p. 3

Legal principles established

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  • Costs are at the discretion of the court and, prima facie, costs follow the event unless the court for good reason otherwise orders.
  • A party to litigation has a duty to be proactive in following up its own case.
  • Where a defendant has infringed a plaintiff's legal right and no misconduct is attributed to the plaintiff, the plaintiff is entitled to costs as a matter of course.

Court orders

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  1. 1.The Notice of Motion application dated 3rd December 2024 be and is hereby allowed
  2. 2.The costs of the instant application be awarded to the Petitioner as against the Attorney General/Applicant
  3. 3.The Court to deliver its Judgment on 24th July, 2025

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21 and Order 51 Rule 1 of the Civil Procedure Rules, 2010

Relief refused

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Costs of the application in favour of the Applicant (Attorney General) / costs in the cause

The court found the Attorney General was not proactive in following up the matter; counsel from the State Counsel's office attended multiple mentions and the judgement date was issued in their presence.

p. 5

Costs

The costs of the instant application be awarded to the Petitioner as against the Attorney General/Applicant

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.

That the costs of the instant application be awarded to the Petitioner as against the Attorney General/Applicant.
p. 5costs order against the Attorney General
That the Notice of Motion application dated 3rd December, 2024 be and is hereby allowed.
p. 5disposition allowing the application
as long as a party is before court for litigation of their case whether as initiators of a claim or defenders of the same, they have a duty to be proactive in the same
p. 5duty of parties to be proactive in litigation
It is clear from the authorities that the fundamental principle underlying the award of costs is two-fold.
p. 4principles governing award of costs
That the Honourable Court to deliver its Judgement on 24th July, 2025.
p. 5judgment date

Issues in the judgment

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minor

Chronology date inconsistency: the affidavit alleges a mention notice for 29th May 2024, but the court's recital of the record refers to 29th May 2025, which is after the judgment date of 27th March 2025.

minor

The deponent is described inconsistently as Senior Litigation Counsel and as a State Counsel at the Office of the Applicant.

minor

Document numbering anomaly: section III 'Submissions' is followed by section IV 'Analysis and Determination' and then another section III 'Conclusion & Disposition'.

minor

The court notes no party filed the submissions directed on costs, yet proceeds to rule.

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, "Attorney General v Boma (Suing as the Administrator of the Estate of the Late Lawrence Mulisho Ndurya) & 8 others (Environment and Land Petition 20 of 2021) [2025] KEELC 5822 (KLR)", Case Analysis (2025). Not stated in the judgment (formerly Mombasa ELC Petition No. 2 of 2020, transferred to ELC Kwale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5822/eng@2025-05-28

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