1. In a ruling delivered on 18th July 2025, this court dismissed the application dated 24th March 2025, vide which the appellants/applicants sought a stay of execution of the orders of the Chief Magistrate’s Court, Mombasa. The impugned orders were issued in Mombasa CMCC No 3283 of 2025; Hasan Swaleh & 2 others v Tom Muchura & 15 others. This court, in the said ruling, ordered that the parties would bear their own costs.
2. With the dismissal of the application, premised on the fact that the matter before the lower court was withdrawn, the appeal became untenable. The only remaining question is who should bear the costs of the appeal. That is the issue this court must consider. On 30th July 2025, the court asked the parties to file written submissions, which were highlighted on 22nd September 2025.
3. I have considered the parties' oral and written submissions. The responders contend that no order on costs should issue. On the other hand, the appellants seek costs on the ground that the respondents’ actions sabotaged their appeal.
4. I have considered the submission of the parties carefully. I note that the dismissal of the application was due to the lack of a substratum, as the matter before the chief magistrate was withdrawn. I note that under section 27 (1) of the Civil Procedure Act, costs are at the discretion of the Court, but that ordinarily costs follow the event unless a good reason exists to depart from the norm (see Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR).
5. What then is the “event”? In my view, the “event’ is the occurrence that triggers the making of an order as to costs. In this case, the “event” would be the withdrawal, dismissal, or striking out of the appeal for whatever reason.
6. It is true that the appeal became untenable upon the withdrawal of the suit in the court below. The latter action is the event in the said court and is the subject of proceedings thereat.
7. I agree with what Odunga, J (as he then was) stated in Republic v Kenya Airports Authority & 4 others Ex-Parte Transglobal Cargo Centre Limited [2015] KEHC 675 (KLR). In the said case, his lordship stated that:
“In determining the issue of costs, the Court is entitled to look at inter alia the conduct of the parties, the subject of litigation, the circumstances which led to the institution of the legal proceedings, the events which eventually led to their termination, the stage at which the proceedings were terminated, the manner in which they were terminated, the relationship between the parties and the need to promote reconciliation amongst the disputing parties pursuant to Article 159(2)(c) of the Constitution. In other words, the court may not only consider the conduct of the party in the actual litigation, but the matters which led up to litigation, the eventual termination thereof and the likely consequences of the order for costs. See Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd [1967] EA 287 and Mulla (12th Edn) P. 150.”
8. I must note that in dismissing the application for stay, I ordered that the parties bear their own costs. I did so because the respondents’ decision to withdraw the case from the court below, though ingenious, was a valid legal strategy. That being the case, I see no reason to depart from my previous finding.
9. In the circumstances, I find and hold that costs in respect of Mombasa HCCA No E 088 of 2025 shall be borne by the parties themselves. As the appeal has now been concluded, I order that the court file be closed forthwith.
10. It is so ordered.
Dated and signed at Mombasa, this 18th day of March 2026. Delivered virtually through Microsoft TEAMS.
2. With the dismissal of the application, premised on the fact that the matter before the lower court was withdrawn, the appeal became untenable. The only remaining question is who should bear the costs of the appeal. That is the issue this court must consider. On 30th July 2025, the court asked the parties to file written submissions, which were highlighted on 22nd September 2025.
3. I have considered the parties' oral and written submissions. The responders contend that no order on costs should issue. On the other hand, the appellants seek costs on the ground that the respondents’ actions sabotaged their appeal.
4. I have considered the submission of the parties carefully. I note that the dismissal of the application was due to the lack of a substratum, as the matter before the chief magistrate was withdrawn. I note that under section 27 (1) of the Civil Procedure Act, costs are at the discretion of the Court, but that ordinarily costs follow the event unless a good reason exists to depart from the norm (see Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR).
5. What then is the “event”? In my view, the “event’ is the occurrence that triggers the making of an order as to costs. In this case, the “event” would be the withdrawal, dismissal, or striking out of the appeal for whatever reason.
6. It is true that the appeal became untenable upon the withdrawal of the suit in the court below. The latter action is the event in the said court and is the subject of proceedings thereat.
7. I agree with what Odunga, J (as he then was) stated in Republic v Kenya Airports Authority & 4 others Ex-Parte Transglobal Cargo Centre Limited [2015] KEHC 675 (KLR). In the said case, his lordship stated that:
“In determining the issue of costs, the Court is entitled to look at inter alia the conduct of the parties, the subject of litigation, the circumstances which led to the institution of the legal proceedings, the events which eventually led to their termination, the stage at which the proceedings were terminated, the manner in which they were terminated, the relationship between the parties and the need to promote reconciliation amongst the disputing parties pursuant to Article 159(2)(c) of the Constitution. In other words, the court may not only consider the conduct of the party in the actual litigation, but the matters which led up to litigation, the eventual termination thereof and the likely consequences of the order for costs. See Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd [1967] EA 287 and Mulla (12th Edn) P. 150.”
8. I must note that in dismissing the application for stay, I ordered that the parties bear their own costs. I did so because the respondents’ decision to withdraw the case from the court below, though ingenious, was a valid legal strategy. That being the case, I see no reason to depart from my previous finding.
9. In the circumstances, I find and hold that costs in respect of Mombasa HCCA No E 088 of 2025 shall be borne by the parties themselves. As the appeal has now been concluded, I order that the court file be closed forthwith.
10. It is so ordered.
Dated and signed at Mombasa, this 18th day of March 2026. Delivered virtually through Microsoft TEAMS.