Kinyua Kamundi & DT Muyaa (Practising as Kinyua Muyaa & Company Advocates) v Southcoast Holding Ltd (Miscellaneous Civil Application E004 of 2024) [2026] KEELC 2779 (KLR)
The bottom line
#A Kenyan court ordered a company to pay the other side's legal costs after its unnecessary, delayed court application was overtaken by events.
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 Respondent/Applicant is entitled to costs of the Notice of Motion application dated 15th August, 2025, notwithstanding the application having been overtaken by events
- 2.What orders should issue in light of the parties' conduct and the Court's discretion under Section 27 of the Civil Procedure Act, Cap. 21
Key legal issues
#Entitlement to costs of an application overtaken by events
The Respondent/Applicant was not entitled to costs; the application was spent and unnecessary, occasioned by its own delay and misrepresentation, and costs were awarded to the Applicant/Respondent despite the general rule framing
The court found the application was filed at the last minute, was reactive and premised on mischaracterizations of fact, suppressing material correspondence including the 9th July 2025 letter and 14th August 2025 email. The cheques were dated 15th August 2025, contradicting claims of readiness on 11th August 2025. The opposing firm had proposed NCBA Bank as early as 9th July 2025 and eventually cooperated. Under Section 27(1) CPA and the cited precedents, discretion on costs must be exercised judicially and costs should not reward inefficiency, misrepresentation or tactical litigation.
Exercise of judicial discretion on costs under Section 27 of the Civil Procedure Act
Discretion must be exercised judicially guided by fairness and the general rule that costs follow the event; departure is justified where a party occasioned unnecessary litigation
The court held that the 'event' in litigation is the outcome of the application; since the application was overtaken by events and did not yield substantive relief, it was effectively unnecessary once compliance occurred. Awarding costs to the Respondent/Applicant would contradict the costs-follow-the-event principle and unjustly penalize the Applicant/Respondent who was compelled to respond to a meritless application that suppressed material facts.
Legal principles established
#- Costs follow the event unless the court for good reason otherwise directs; where an application is spent, costs may be awarded against the party whose delay, misrepresentation and suppression of material facts occasioned the unnecessary litigation
Court orders
#- 1.That the Notice of Motion application dated 15th August 2025 filed by the Respondent/Applicant seeking variation of the orders issued on 3rd July 2025 and permission to deposit funds directly into Court be and is hereby found to be spent
- 2.That Respondent/Applicant shall bear the costs of the application to be paid to the Applicant
- 3.That the matter shall proceed to taxation of the Advocate–Client Bill of Costs as previously directed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Cap. 21; Order 45 Rule 1 of the Civil Procedure Rules, 2010; Article 159 of the Constitution of Kenya, 2010; Section 27(1) of the Civil Procedure Act on costs
Relief refused
#Costs of the application dated 15th August 2025 awarded to the Respondent/Applicant
The application was overtaken by events and occasioned by the Respondent/Applicant's own delay and misrepresentation; costs should not reward inefficiency or tactical litigation
Costs
The Respondent/Applicant shall bear the costs of the application dated 15th August 2025, to be paid to the Applicant/Respondent (Kinyua Muyaa & Co. Advocates).
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 Notice of Motion application dated 15th August 2025 filed by the Respondent/ Applicant seeking variation of the orders issued on 3rd July 2025 and permission to deposit funds directly into Court be and is hereby found to be spent.
That Respondent/Applicant shall bear the costs of the application to be paid to the Applicant.
That the matter shall proceed to taxation of the Advocate–Client Bill of Costs as previously directed.
It evident that the Respondent/Applicant delayed in raising funds and issuing instructions, only acting close to the deadline. The Respondent/Applicant misrepresented the date of issuance of bankers’ cheques, undermining its credibility.
Courts have held that where an application is spent, the party who occasioned unnecessary litigation should bear costs.
Issues in the judgment
#Inconsistent date of the ruling whose orders are the subject of the application: the replying affidavit refers to orders of 30th July 2025 while the application and the court's analysis refer to a ruling dated 3rd July 2025
Conflicting attribution of the costs citations: paragraph 35 attributes the costs principles to the Court of Appeal cases including 'Cecilia Karuru Ngaya', whereas paragraph 22 shows the Cecilia Karuru Ngayu case was cited by the Respondent/Applicant and the costs quote is from Jasbir Singh Rai
Internal inconsistency in framing: paragraph 43 concludes the 'event' is the dismissal of the application, but the final orders find the application spent rather than dismissing it
Numbering of the issues for determination is inconsistent (issues 'a' to 'c' are listed, then the second issue is labelled 'e')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kinyua Kamundi & DT Muyaa (Practising as Kinyua Muyaa & Company Advocates) v Southcoast Holding Ltd (Miscellaneous Civil Application E004 of 2024) [2026] KEELC 2779 (KLR)", Case Analysis (2026). Not stated in the ruling (arising from ruling of 3rd July 2025 in the principal Notice of Motion dated 14th May 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2779/eng@2026-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.