1. The Plaintiff had sued the former employer, the 1st Defendant for his dues and benefits. It is on record that there was an injunction against the 1st Defendant where the Court of Appeal had frozen all payments to the 1st Defendant save for the salaries of the active employees, which excluded the Plaintiff. When the freezing orders were lifted, the Plaintiff and the 1st Defendant settled the matter out of court.
2. The issue now before this court is the payment of costs. Parties were directed to file their respective submissions on the issue. Only the Defendants complied by filing their submissions dated 06/03/2026.
3. Under Section 27 of the Civil Procedure Act, provides as follows;
(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:
Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.
(2) The court or judge may give interest on costs at any rate not exceeding
fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.
7. The general legal principle on costs are as follows: -
i. That costs follow the event.
ii. “The event” is that the unsuccessful party will be ordered to pay the costs of the successful party;
iii. The court has discretion as to who pays costs, the amount thereof and when they are to be paid. The discretion must be exercised judicially; it must not be exercised arbitrarily but in accordance with reason and justice.
8. From the above, the successful litigant should ordinarily be awarded costs unless there is conduct justifying a departure from that principle. The 1st Defendants accounts had been frozen and no payments could be made to the exception of the active employees. Once the freezing orders were lifted, the 1st Defendant settled the Plaintiff’s pending benefits and dues.
9. In the case of Rufus Njuguna Miringu & Another V Martha Muriithi & 2 Others [2012] eKLR, it was held as follows;
“…consent cannot be interpreted to mean that one or the other party has succeeded in a suit. Even if in the present case such settlement has worked out in the Defendants’ favour, the successful determination of the dispute is still attributable to both the Plaintiffs and the 1st and 2nd Defendants… In the circumstances, it would be just for the parties to bear their own costs of the proceedings.”
10. In the present case, both parties consented to settling the matter out of court. The courts are also mandated by the Constitution of Kenya under Article 159 (2) (c) to promote alternative dispute resolution mechanisms, and which provides as follows;
(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles—
(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);
11. I find that each party should bear its own costs for the following reasons;
i. That this court is mandated by the constitution to promote alternative dispute resolution mechanisms and the parties who have willingly consented to resolve their matters should not be condemned to pay costs.
ii. That the Plaintiff has not shown any reasonable cause that he ought to be paid costs of the suit.
iii. That this being a 2017 matter, litigation must come to an end.
12. The parties having settled, this file is hereby closed.
Dated and delivered virtually at Mombasa this 25th day of June, 2026
………………………..
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of: -
Mr. Kilumo Advocate h/b for Mr. Bwire Advocate for the Plaintiff
Mr. Odipo Advocate for the Defendants
Ms. Salwa, Court Assistant
2. The issue now before this court is the payment of costs. Parties were directed to file their respective submissions on the issue. Only the Defendants complied by filing their submissions dated 06/03/2026.
3. Under Section 27 of the Civil Procedure Act, provides as follows;
(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:
Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.
(2) The court or judge may give interest on costs at any rate not exceeding
fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.
7. The general legal principle on costs are as follows: -
i. That costs follow the event.
ii. “The event” is that the unsuccessful party will be ordered to pay the costs of the successful party;
iii. The court has discretion as to who pays costs, the amount thereof and when they are to be paid. The discretion must be exercised judicially; it must not be exercised arbitrarily but in accordance with reason and justice.
8. From the above, the successful litigant should ordinarily be awarded costs unless there is conduct justifying a departure from that principle. The 1st Defendants accounts had been frozen and no payments could be made to the exception of the active employees. Once the freezing orders were lifted, the 1st Defendant settled the Plaintiff’s pending benefits and dues.
9. In the case of Rufus Njuguna Miringu & Another V Martha Muriithi & 2 Others [2012] eKLR, it was held as follows;
“…consent cannot be interpreted to mean that one or the other party has succeeded in a suit. Even if in the present case such settlement has worked out in the Defendants’ favour, the successful determination of the dispute is still attributable to both the Plaintiffs and the 1st and 2nd Defendants… In the circumstances, it would be just for the parties to bear their own costs of the proceedings.”
10. In the present case, both parties consented to settling the matter out of court. The courts are also mandated by the Constitution of Kenya under Article 159 (2) (c) to promote alternative dispute resolution mechanisms, and which provides as follows;
(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles—
(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);
11. I find that each party should bear its own costs for the following reasons;
i. That this court is mandated by the constitution to promote alternative dispute resolution mechanisms and the parties who have willingly consented to resolve their matters should not be condemned to pay costs.
ii. That the Plaintiff has not shown any reasonable cause that he ought to be paid costs of the suit.
iii. That this being a 2017 matter, litigation must come to an end.
12. The parties having settled, this file is hereby closed.
Dated and delivered virtually at Mombasa this 25th day of June, 2026
………………………..
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of: -
Mr. Kilumo Advocate h/b for Mr. Bwire Advocate for the Plaintiff
Mr. Odipo Advocate for the Defendants
Ms. Salwa, Court Assistant