[2017] KEHC 1864 (KLR)
The court found that the petitioner was not diligent in filing the petition, having failed to deposit the required security and subsequently seeking withdrawal for personal reasons. The respondents had undertaken significant work in response to the petition, justifying an award of costs. The court exercised its...
Source-derived case information.
- Citation
- [2017] KEHC 1864 (KLR)
- Parties
- Applicant: Fatuma Zainabu Mohammed; Respondent: Hon. Pamela Owuor Ochieng; Respondent: Independent Electoral and Boundaries Commission
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Election Petition 3 of 2017
- Procedural Posture
- Election Petition / Ruling on Withdrawal and Costs
- Outcome
- Petition withdrawn by leave; costs awarded to respondents.
- Judges
- HK Chemitei
- Legal Topics
- Withdrawal of Petition, Costs Award, Security for Costs, Election Petition Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fatuma Zainabu Mohammed
Applicant
Hon. Pamela Owuor Ochieng
Respondent
Independent Electoral and Boundaries Commission
Respondent
Procedural Posture
Election Petition / Ruling on Withdrawal and Costs
Legal Issues
- 1 Whether the petition should be withdrawn upon the applicant's request.
- 2 Whether the respondents are entitled to costs upon withdrawal of the petition.
- 3 What amount of costs is appropriate in the circumstances.
Ratio Decidendi
The court found that the petitioner was not diligent in filing the petition, having failed to deposit the required security and subsequently seeking withdrawal for personal reasons. The respondents had undertaken significant work in response to the petition, justifying an award of costs. The court exercised its discretion under Rule 30 of the Elections Petition Rules to award costs to the respondents, apportioning Kshs 200,000 to the 1st respondent and Kshs 100,000 to the 2nd respondent (IEBC), with a reduction for the 2nd respondent due to their lack of response to the petition. The withdrawal was allowed, and costs were ordered accordingly.
Court Disposition
Petition withdrawn by leave; costs awarded to respondents.
Orders
- The petition is withdrawn as per the application dated 24th October 2017.
- The petitioner shall pay Kshs 200,000 to the 1st respondent.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MIGORI
ELECTION PETITION NO. 3 OF 2017
FATUMA ZAINABU MOHAMMED............................PETITIONER
VERSUS
HON. PAMELA OWUOR OCHIENG...............1ST RESPONDENT
INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION........................2ND RESPONDENT
R U L I N G
1. By her application dated 24/10/2017 the Petitioner herein withdrew her petition vide the leave of the court for the sole reason that she had family issues as well to reconcile with political leaders for the interest of the country.
2. The Respondents have filed their responses where in principle they did not oppose the said application save that they should be paid their costs. Mr. Ondiek suggested from the bar that they should be paid a sum of Kshs 100,000 as a commensurate compensation. Mr. Mboya on his part suggested that the Petitioner should pay the sum of kshs 500,000/-.
3. Rule 30 of the Elections (Parliamentary and County Elections) Petition Rules 2017 states in Rule 30(2) (b) that:-
“When making an order under sub rule (1), the election court may-
(3) Impose the burden of payment on the party who may have caused an unnecessary expense, whether that party is successful or not, in order to discourage any such expense.”
4. Having perused the pleadings herein, I do agree with the Respondents that they have done some serious work in response to the petition. Clearly, the Petitioner ought to have been diligent enough before filing this petition. I note that the Petitioner failed to deposit the security as required when she filed her petition. Clearly she was not serious.
5. Consequently taking into consideration the totality of the pleadings herein I shall allow her application dated 24th October 2017 and order that the Petitioner should pay a total sum of Kshs 300,000/- to the Respondents as follows;-
(a) Kshs 200,000/- to the 1st Respondent.
b) Kshs 100,000/- to the 2nd Respondent IEBC.
6. I have deliberately reduced the sum due to IEBC for I do not find that they had filed any response to the petition.
Orders accordingly.
Delivered, signed and dated at Migori this 30th day of November, 2017.
_____________
H.K. CHEMITEI
JUDGE
30/11/17
In the presence of;-
Sagana holding brief for Mboya for 2nd Respondent
Ang’awa holding brief for Ondiek for Petitioner
Nyauke - Court clerk
Ruling read in open court.