Jason Mbaya M’Mbogori v Dennis Mwiti
The bottom line
#Withdrawing an appeal in Kenya doesn't shield you from paying the other side's legal costs once they've already responded through a lawyer.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What order should be made with regard to costs of the appeal, given the uncontested withdrawal?
Key legal issues
#Costs of an appeal withdrawn after the respondent had filed a response through counsel
The respondent is entitled to costs of the appeal, payable by the appellant
The withdrawal came after the respondent instructed an advocate and filed a response to the application, creating an obligation to pay those legal costs. It would be unfair to deny the respondent costs. Section 27 of the Civil Procedure Act makes costs follow the event, and the Jasbir Singh Rai decision warns against capricious exercise of the costs discretion.
Legal principles established
#- Costs follow the event, and the court's discretion on costs must not be exercised capriciously
Court orders
#- 1.The appeal is marked 'withdrawn'
- 2.The appellant is to bear costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Appellate jurisdiction of the Environment and Land Court (ELC Appeal Case No. E070 of 2026); no specific provision cited
Relief refused
#Withdrawal with no order as to costs
Respondent had instructed an advocate and filed a response, incurring an obligation to pay legal costs; denying costs would be unfair
Costs
The appellant is to bear costs of the appeal
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.
In the end, this appeal is marked “withdrawn” and the appellant is to bear costs of the appeal. It is so ordered.
Under Section 27 of the Civil Procedure Act, the general principle on costs is that they follow the event.
Clearly, the respondent has an obligation to pay legal costs to the instructed advocate.
Issues in the judgment
#Judgment styled 'RULING' though it disposes of the appeal by withdrawal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jason Mbaya M’Mbogori v Dennis Mwiti", Case Analysis (2026). ELC APPEAL CASE NO. E070 OF 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5887/eng@2026-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.