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)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Honourable Attorney General should be subjected to paying costs of the application dated 3rd December 2024 or not
Key legal issues
#Whether costs of the application should be awarded against the Attorney General
Costs of the application were awarded to the Petitioner against the Attorney General, who was found not to have been proactive in the litigation.
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.
Whether the judgment should be arrested and the respondent's case reopened
By consent of the parties, the application was allowed and the judgment arrested; the consent left only costs for determination.
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.
Legal principles established
#- 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
#- 1.The Notice of Motion application dated 3rd December 2024 be and is hereby allowed
- 2.The costs of the instant application be awarded to the Petitioner as against the Attorney General/Applicant
- 3.The Court to deliver its Judgment on 24th July, 2025
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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.
Costs
The costs of the instant application be awarded to the Petitioner as against the Attorney General/Applicant
Quotable passages
#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.
That the Notice of Motion application dated 3rd December, 2024 be and is hereby allowed.
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
It is clear from the authorities that the fundamental principle underlying the award of costs is two-fold.
That the Honourable Court to deliver its Judgement on 24th July, 2025.
Issues in the judgment
#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.
The deponent is described inconsistently as Senior Litigation Counsel and as a State Counsel at the Office of the Applicant.
Document numbering anomaly: section III 'Submissions' is followed by section IV 'Analysis and Determination' and then another section III 'Conclusion & Disposition'.
The court notes no party filed the submissions directed on costs, yet proceeds to rule.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.