https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7668

Makarina v Gitije & 4 others (Petition E005 of 2025) [2026] KEHC 7668 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7668 (KLR) Republic of Kenya In the High Court at Meru Petition E005 of 2025 HM Nyaga, J May 28, 2026 Between Michael Mutembei Makarina Petitioner and Martin Gitije 1st Respondent Assumption of the Office of the Governor Committee County Government of Meru 2nd Respondent and Council Of Governors 1st Interested Party Isaac Mutuma M’ Ething’ia 2nd Interested Party Hon. Kawira Mwangaza 3rd Interested Party Ruling 1.The petitioner herein withdrew his petition on 6/10/2025 citing the fact that the same had been overtaken by events. 2.The petition was subsequently withdrawn and the respondents sought an award of costs. 3.This ruling is thus on the question of whether the respondents and interested parties who appeared are entitled to costs. In nutshell it is argued that they were forced to secure counsel to represent them and as such they ought to be compensated. 4.The petitioner sought orders that each party bears its other costs citing the petition as a public interest litigation. 5.Parties filed submissions that I will not rehash, but will refer to them where necessary. 6.Section 27 of the Civil Procedure Acts provides for costs. It states as follows;Costs(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. 7.It is thus trite law that although costs follow the event, the court has the discretion to make any other orders if there are good reasons. In Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR cited by the respondents and interested parties, the Supreme Court stated that: -“It is clear that there is no prescribed definition of any set of “good reasons” that will justify a Court’s departure, in awarding costs, from the general rule, costs-follow-the-event. In the classic common law style, the Courts have proceeded on a case-by-case basis, to identify “good reasons” for such a departure. An examination of evolving practices on this question, shows that, as an example, matters in the domain of public-interest litigation tend to be exempted from award of costs. 8.Is this matter truly a public litigation as averred by the petitioner? 9.Public interest litigation is described as follows in The Black’s Law Dictionary, 10th Edition, as follows: -“Public Interest Litigation means a legal action initiated in a Court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.” 10.The court in Kenya Anti-Corruption Commission vs. Deepak Chamanlal Kamni and 4 others [2014] eKLR was also called upon to determine what a matter of public interest is. It held that:“…a matter of public interest must be a matter in which the whole society has a stake, anything affecting the legal rights or liability of the public at large.” 11.In the Indian case of Thakur Bahadur Singh and Another vs. Government of Andhra Pradesh 1998 (5)ALT567 the court also described what public interest litigation was. It stated: -“PIL has a significant American development. The Council for Public Interest Law set up by the Ford Foundation in USA, in its report (1976) at pp.6-7 defined PIL thus:“Public Interest Law is the name that has recently been given to efforts to provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in recognition that the ordinary market place for legal services fails to provide such services to significant segments of the population and to significant interest. Such groups and interests include the poor, environmentalists, consumers, racial and ethnic minorities, and others.” 12.In another Indian case of People’s Union for Democratic Rights & Others v Union of India & Others (1982) 3 SCC 235, the court observed that: -“Public interest litigation is essentially a cooperative or collaborative effort by the Petitioner, the State or public authority and the Court to secure observance of constitutional or basic human rights, benefits and privileges upon poor, downtrodden and vulnerable sections of the society.” 13.In the case of Mumo Matemu vs Trusted Society of Human Rights Alliance and 5 others [2014] eKLR the Supreme Court explained the essence of public interest litigation as follows;“Public Interest Litigation plays a transformative role in society. It allows various issues affecting the various spheres of society to be presented for litigation. This was the Constitution’s aim in enlarging locus standi in human rights and constitutional litigation. Locus standi has a close nexus to the right of access to justice. In instances where claims in the interest of the public are threatened by administrative action to the detriment of constitutional interpretation and application, the Court has discretion on a case by case basis, to evaluate the terms and public nature of the matter vis a vis the status of the parties before it. This discretion is drawn from the command of Article 259 (1), to interpret the Constitution in a manner that promotes its values and purposes, advances the rule of law, human rights and fundamental freedoms, permits the development of the law and contributes to good governance”. 14.In determining whether the Petition herein is a public interest litigation, the court needs to look at the pleadings as drawn. Such was the finding of the court in Dindi Oscar Okumu v Robert Pavel Oimeke & 5 others [2021] eKLR, where the court approached the issue as follows;“In determining whether the Petition herein is a public interest litigation, I have to have a look at the Petition as drawn and filed. The Petition herein is dated 10th March 2020 drawn by Petitioner Mr. Dindi Oscar Okumu under paragraph 1 of the Petition, the Petitioner states:-“The Petitioner is a Kenyan Citizen residing and working in Nairobi City County within the Republic of Kenya. He is a tax payer and a consumer of various products directly and or indirectly under the ambit of the Energy & Petroleum Regulatory Authority as managed by the 1st and 2nd Respondents. He brings this Petition on his own behalf and on behalf of the entire Kenyan Public as the issues to be addressed in this Petition affecting or are likely to affect the entire country.”From the contents of paragraph 1 of the Petition it is clearly pleaded that “He brings this Petition on his own behalf and on behalf of the entire Kenyan Public as the issues to be addressed in this Petition affect and or are likely to affect the entire country.From the contents of paragraph 1 of the Petition herein, it is clear that this Petition is brought in public interest litigation, as the legal action as initiated in this Petition is purely for enforcement of public interest or general interest in which the public or class of community have pecuniary interest or some interest by which thein legal rights or liabilities are affected. The whole society has a stake in the Petition in which the legal rights or liability are threatened and this Petition purely is for advancement of the cause of minority or disadvantaged groups or individuals and is not for Petitioner’s personal gain.” 15.Looking at the petition as drawn, I don’t find anything to describe the petition other than public interest litigation. 16.The petitioner’s petition was premised upon the averment that the intended assumption of office by the 2nd respondent was unconstitutional and unlawful. The petitioner had nothing to gain from the petition. 17.The petition was withdrawn on account of the fact that the same was overtaken by events. It was not found to be frivolous or vexatious. 18.Even though the respondents and interested parties have taken time to defend the petition, I think that an award of costs would only discourage public spirited citizens from filing such petitions which are a cornerstone of the Constitution and the Rule of Law. 19.Considering all factors, I find that it would only be appropriate if each party bears its own costs. 20.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU THIS 28TH DAY OF MAY, 2026.H. M. NYAGAJUDGE