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Case Brief · caselaw.co.ke
ELCOtherELC APPEAL CASE NO. E070 OF 2026

Jason Mbaya M’Mbogori v Dennis Mwiti

Environment and Land Court
28 September 2026
400 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ex-tempore ruling of the Environment and Land Court at Meru (B M Eboso, ELC Judge) disposed of an appeal, ELC Appeal Case No. E070 of 2026, in which Jason Mbaya M'Mbogori appealed against Dennis Mwiti. The appeal was filed on or about 27 June 2026; on 30 June 2026 Oguttu Mboya J issued a conditional status-quo order in favour of the appellant, and on 6 July 2026 an order of stay of execution, listing the application dated 26 June 2026 for hearing. When the matter came up on 22 July 2026 the appellant did not attend and there was no evidence of compliance with the earlier order. On 28 September 2026 the appellant orally applied to withdraw the appeal with no order as to costs. The respondent did not oppose the withdrawal but sought costs, having instructed an advocate who filed a response to the application. The court framed a single question: what costs order should follow the uncontested withdrawal. Relying on Section 27 of the Civil Procedure Act (costs follow the event) and the Supreme Court's decision in Jasbir Singh Rai v Tarlochan Singh Rai on avoiding capricious exercise of the costs discretion, the court held that because the respondent had incurred an obligation to pay his instructed advocate, it would be unfair to deny him costs. The appeal was marked 'withdrawn' and the appellant ordered to bear the costs of the appeal.

Questions the Court framed

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

  1. 1.What order should be made with regard to costs of the appeal, given the uncontested withdrawal?

Key legal issues

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01

Costs of an appeal withdrawn after the respondent had filed a response through counsel

Holding

The respondent is entitled to costs of the appeal, payable by the appellant

Reasoning

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.

p. 2

Legal principles established

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  • Costs follow the event, and the court's discretion on costs must not be exercised capriciously

Court orders

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  1. 1.The appeal is marked 'withdrawn'
  2. 2.The appellant is to bear costs of the appeal

The bench

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

majority

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

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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

p. 2

Costs

The appellant is to bear costs of the appeal

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.

In the end, this appeal is marked “withdrawn” and the appellant is to bear costs of the appeal. It is so ordered.
p. 2Final orders - withdrawal and costs
Under Section 27 of the Civil Procedure Act, the general principle on costs is that they follow the event.
p. 2Costs follow the event
Clearly, the respondent has an obligation to pay legal costs to the instructed advocate.
p. 2Entitlement to costs where respondent has filed through counsel

Issues in the judgment

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minor

Judgment styled 'RULING' though it disposes of the appeal by withdrawal

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, "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.