[2022] KEHC 10756 (KLR)
Although the general rule is that costs follow the event, the court exercised its discretion under rule 26(2) of the Mutunga Rules and Article 48 of the Constitution to ensure access to justice. The petition was withdrawn by consent before any substantive hearing or determination on the merits, and the preliminary...
Source-derived case information.
- Citation
- [2022] KEHC 10756 (KLR)
- Parties
- Applicant: Hillary Mutuma Mugambi alias Hillary Sandi; Respondent: Independent Electoral and Boundaries Commission; Respondent: Returning Officer North Imenti Constituency
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Petition E004 of 2022
- Procedural Posture
- Constitutional Petition / Ruling on Costs After Withdrawal of Petition
- Outcome
- Petition withdrawn by consent; no order as to costs.
- Judges
- EM Muriithi
- Legal Topics
- Costs in Constitutional Petitions, Withdrawal of Petition, Access to Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Hillary Mutuma Mugambi alias Hillary Sandi
Applicant
Independent Electoral and Boundaries Commission
Respondent
Returning Officer North Imenti Constituency
Respondent
Procedural Posture
Constitutional Petition / Ruling on Costs After Withdrawal of Petition
Legal Issues
- 1 Whether costs should be awarded against the petitioner upon withdrawal of a constitutional petition.
- 2 Whether the nature of the petition seeking enforcement of constitutional rights affects the order as to costs.
Ratio Decidendi
Although the general rule is that costs follow the event, the court exercised its discretion under rule 26(2) of the Mutunga Rules and Article 48 of the Constitution to ensure access to justice. The petition was withdrawn by consent before any substantive hearing or determination on the merits, and the preliminary objection was not considered. In these circumstances, to avoid discouraging litigants from seeking constitutional reliefs, the court found it appropriate that each party should bear its own costs. There was no order as to costs, balancing the principle that costs follow the event with the need to promote access to justice in constitutional litigation.
Court Disposition
Petition withdrawn by consent; no order as to costs.
Orders
- There shall be no order as to costs in the petition which has been withdrawn by consent of the parties.
Full Case Text
Judgment text and source record
26 paragraphs
Mugambi v Independent Electoral and Boundaries Commission & another (Petition E004 of 2022) [2022] KEHC 10756 (KLR) (9 June 2022) (Ruling)
Neutral citation: [2022] KEHC 10756 (KLR)
Republic of Kenya
In the High Court at Meru
Petition E004 of 2022
EM Muriithi, J
June 9, 2022
Between
Hillary Mutuma Mugambi alias Hillary Sandi
Petitioner
and
Independent Electoral and Boundaries Commission
1st Respondent
Returning Officer North Imenti Constituency
2nd Respondent
Ruling
1. The petitioner filed a constitutional application by petition dated 30/5/2022 seeking a declaration that the respondents had violated specific articles of the Constitution and a substantive finding that he was qualified to be nominated to vie for Nyaki West Ward in the August 9, 2022 Election, together with a consequential order compelling the respondent to issue a nomination certificate.
2. The respondents’ counsel filed a notice of appointment and preliminary objectiondated 31/5/2022 together with a list of authorities in support of the preliminary objection.
3. Subsequently, the parties agreed on the withdrawal of the petition but failed to agree on whether there should be an order as to costs. The petition was marked withdrawn on 31/5/2022 subject to ruling on costs.
4. The general principle on costs as set out in section 27 of the Civil Procedure Act and rule 26(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules) is that costs are in the discretion of the court and that costs follow the event.
5. Under Sub rule 2 ofrule 26 of the Mutunga Rules, the following direction is given:“(2)In exercising its discretion to award costs, the court shall take appropriate measures to ensure that every person has access to the court to determine their rights and fundamental freedoms.”
6. In this application, although the principle that costs follow the event dictate that the petitioner who has withdrawn his petition should pay for the costs, the nature of the application which sought the enforcement of rights and constitutional reliefs would call for the exercise of discretion to allow for access to the court and constitutional reliefs as prescribed under rule 26(2) of the Mutunga Rules.
7. The court further notes that, save for the filing of the notice of appointment and preliminary objection and list of authorities, the matter has not been heard and determined on the merits and the preliminary objection itself was not considered.
8. In these circumstances, and to give effect to the principle of access to court and justice under article 48 of the Constitution and rule 26(2) of the Mutunga Rulesand bearing in mind that there has not been a determination on the merits or on the preliminary objection to the petition, the court considers that there should be a no order as to costs, so that each party bears its own costs.
Order 9. Accordingly, for the reason set out above, the court makes an order that there shall be no order as to costs in the petition which has been withdrawn by consent of the parties.Order accordingly.
DATED AND DELIVERED THE 9TH JUNE, 2022. EDWARD M. MURIITHIJUDGEAppearancesM/S Nge’ntu & Co. Advocates for Petitioner.M/S J.M. Mwangi & Co, Advocates for the Respondents.2