Dache v Otieno (Environment and Land Appeal E001 of 2025) [2026] KEELC 1545 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that legal costs must be calculated from the money actually awarded — here just Kshs 1,400 — not the amount claimed.
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 trial court erred by awarding costs to the respondent in respect of prayers that were dismissed
- 2.Whether the trial court failed to follow the Advocates Remuneration Order and guidelines in assessing costs
- 3.Whether the costs awarded were excessive
- 4.What should be the basis (value of subject matter) for taxation of the respondent's party and party costs
Key legal issues
#Basis for taxation of party and party costs
The trial court erred by not using the sum awarded (Kshs 1,400) as the value of the subject matter for taxation; the declaratory and injunction prayers having failed, the awarded sum is the proper basis
The court noted no appeal lay against the trial judgment, only against taxation. Although the respondent pleaded a market value of Kshs 300,000, no valuation report proved it, and the claims for declaration of ownership and permanent injunction failed. Applying Joreth Limited v Kigano & Associates, the value of the subject matter is drawn from the pleadings, judgment or settlement; here the judgment awarded only Kshs 1,400 plus interest, so that sum should anchor the taxation.
Principle governing award of costs
Costs follow the event but compensate, not penalise; the respondent was the successful litigant on the sum awarded
Relying on Kenya Anti-Corruption Commission v Marshalls East Africa Ltd and Jasbir Singh Rai v Tarlochan Singh Rai, the court reaffirmed that the basic rule is that costs follow the event, but the principle compensates the successful party for trouble taken in litigation and must not be applied as a penal measure against the losing party.
Legal principles established
#- The value of the subject matter for taxation of a bill of costs is determined from the pleadings, the judgment or settlement, and where the claim for land fails, the sum actually awarded is the basis for charging costs
- Costs are awarded to compensate the successful party, not to punish the unsuccessful party
Court orders
#- 1.Appeal allowed
- 2.Ruling dated 2nd July 2024 by the trial court set aside
- 3.Matter referred back to the trial court to reassess the respondent's party and party costs based on the award of Kshs 1400
- 4.Each party to bear its own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Vihiga Principal Magistrate's Court (SPMCEL)
- VIHIGA SPMCL & E No. 1 of 2017
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's ruling on taxation (appeal against ruling of Hon. Beryl Omollo SRM delivered 2nd July 2024)
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.
I find that the appeal has merit and hereby allow it. The ruling dated 2 nd July 2024 by the trial court is set aside. The matter is referred back to the trial court to reassess the respondent's party and party costs based on the award of Kshs 1400.
guided by the principles set in the case of Joreth (supra), the sum awarded ought to be the basis for charging the costs.
costs are awarded to compensate the successful party for the trouble taken in prosecuting or defending the case and not to punish the unsuccessful party.
the ruling of the trial court was erroneous to the extent that it failed to apply the sum awarded as the value of the subject matter of the case
Issues in the judgment
#Internal date inconsistencies: judgment header describes the respondent's claim as instituted by 'plaint dated 20th December 2017' yet the appellant is recorded as having filed a defence dated 26th January 2018 in a case numbered '1 OF 2017'; also written submissions dated 6th February 2026 and 27/1/2026 are recorded as filed before directions of 15th October 2025, and judgment of 12th March 2026 in a matter numbered E001 of 2025
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dache v Otieno (Environment and Land Appeal E001 of 2025) [2026] KEELC 1545 (KLR)", Case Analysis (2026). ELCLA NO. E001 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1545/eng@2026-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.