High Court Affirms Trial Magistrate’s Decision to Deny Costs in Favor of Promoting Reconciliation Between the Parties.

Facts

The appellant served a hearing notice for June 28, 2024, to the respondent, who failed to appear without explanation. Consequently, the appeal proceeded ex parte. The appellant was represented by M/s Kaahwa, Kafuuzi, Bwiruka & Co. Advocates, who submitted that, given the trial court’s finding that the respondent had trespassed, costs should have been awarded to the appellant. They argued that the magistrate provided no rationale for denying these costs.

Ruling

The court has held that under Section 27(1) of the Civil Procedure Act, the award of costs lies within the court's discretion, typically favoring the successful party unless there is "good cause" to decide otherwise.

Referencing the decision of the Supreme Court of Kenya in Sonko v Clerk, County Assembly of Nairobi City & 12 Others which the trial magistrate reaffirmed this discretion, emphasizing that costs do not automatically follow the event.

The court observed:

"The guiding principles applicable in costs, as stated in Jasbir Singh Rai, hold that costs generally follow the event, with judicial discretion exercised carefully. This principle means that the party initiating the suit will typically bear costs if the suit fails; however, if successful, the defendant or respondent will bear the costs. Importantly, the court’s discretion must be applied judiciously, considering the unique circumstances of each case and guided by the pursuit of justice. Public interest, party motivations, and conduct before, during, and after litigation are all relevant factors in this discretionary process. Although the rule that costs follow the event has sound logic, it is not absolute; the ultimate decision lies in judicial discretion. Costs, therefore, are not an automatic consequence of legal proceedings, as illustrated by the court's approach in other cases."

The  court further added that,

The phrase "costs follow the event" is not a rigid rule mandating costs for the successful party. Instead, the court has broad discretion, considering factors such as party conduct, the nature of the dispute, the parties' relationship, and the potential impact on that relationship.

The High Court upheld the trial magistrate's discretionary decision, dismissing the appeal and affirming that fostering peaceful coexistence between the parties justified the denial of costs. No orders as to costs were made, given the respondent’s non-participation in the appeal.

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