https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11404

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KABARNET** **CONSTITUTIONAL PETITION NO.E010 OF 2025** **GODFREY ROTICH...................................................1ST PETITIONER** **KAPLELACH LAVENDER JELAGAT............................2ND PETITIONER** **KIPYEGON KIGEN GEDION ......................................3RD PETITIONER** **CHESANG FLORENCE...............................................4TH PETITIONER** **VERSUS** **CABINET SECRETARY MINISTRY OF EDUCATION....1ST RESPONDENT** **THE COMMISSION FOR UNIVERSITY EDUCATION.....2NDRESPONDENT** **THE HON. ATTORNEY GENERAL............................3RD RESPONDENT** **RULING** 1. The issue here is whether the order of withdrawal of the petition should be with costs to the Respondents. 2. Mr. Rutto Counsel for the applicant sought to withdraw the Petition and filed notice of withdrawal. He sought that the withdrawal be allowed with no orders as to costs. 3. Mr. Omiti holding brief for Mr. Omboga for 1st Respondent insisted that the 1st Respondent had no objection to the withdrawal subject to payment of costs considering the industry that had gone into the interlocutory applications. 4. Mr. Rutto submitted that the Petition was in the public interest as it had been brought by students. 5. Ms. Odeyo appeared for the Attorney General for the respondents. She submitted that the Attorney General was on record for all the respondents and the Attorney General was of the same view that the Petition was in the public interest and had no objection to the withdrawal of the Petition with no orders as to costs. 6. She submitted that the issue of representation of the 1st respondent had arisen at some point but the Attorney General had been on record. 7. To this Mr. Omiti submitted that their firm had been on record for the 1st Respondent all through, and that they deserved costs. 8. I have looked at the petition. From the heading it was *in the matter of Establishment of Kabarnet University College and the unprocedural relocation from Moi Seretunin Teachers’ College Baringo.* 9. The Petitioners were students. The 1st Respondent is the Cabinet Secretary Ministry of Education, the 2nd – Commission for University Education, the 3rd – The Attorney General. 10. While the record has reflected that at Omboga or Omiti have appeared for the 1st Respondent on occasion the issue of representation when it arose on 16/9/2025, it was not settled. 11. I would say that the rebuttable presumption is that at all times the Attorney General represents all the Government Agencies – Hence if indeed the 1st Respondent instructed Mr. Omiti’s firm – I would say that would be between them. 12. However, the question here is whether this is one of those petitions where an order of costs for the respondents should issue? The Hon Attorney General acknowledges that it was in the public interest, who would be better placed that the CS, MOE, the Commissioner for University Education to acknowledge that this Petition was not in the pursuit of private interest? 13. The award of costs is discretionary depending on the circumstances of the case – Looking at the petition – an award of costs would not be in order. In the circumstances the prayer for costs by 1st respondent is declined. 14. The Petition is marked as withdrawn with no orders as to costs. **RULING dated signed and delivered via CTS 24th July 2026** **MUMBUA T MATHEKA** **JUDGE** CA Karanja