[2017] KEHC 7719 (KLR)
The court found that, although the application for leave to institute judicial review proceedings was not granted and was subsequently withdrawn, the respondent had been served and had appointed counsel, resulting in representation and proceedings in the matter. In the absence of any consent between the parties...
Source-derived case information.
- Citation
- [2017] KEHC 7719 (KLR)
- Parties
- Applicant: Sammy Mwangi Kamau; Respondent: Nyali Golf & Country Club Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 78 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Costs After Withdrawal of Application for Leave to Institute Judicial Review
- Outcome
- Costs awarded to the respondent upon withdrawal of the application.
- Judges
- DO Ogembo
- Legal Topics
- Judicial Review Leave, Costs Award, Withdrawal of Application, Disciplinary Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sammy Mwangi Kamau
Applicant
Nyali Golf & Country Club Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Costs After Withdrawal of Application for Leave to Institute Judicial Review
Legal Issues
- 1 Whether the respondent is entitled to costs after the applicant withdrew the application for leave to institute judicial review proceedings.
- 2 Whether the existence of representation and service of the application justifies an award of costs to the respondent.
Ratio Decidendi
The court found that, although the application for leave to institute judicial review proceedings was not granted and was subsequently withdrawn, the respondent had been served and had appointed counsel, resulting in representation and proceedings in the matter. In the absence of any consent between the parties regarding costs, the withdrawal of the application necessitated an award of costs to the respondent. The court held that the respondent was entitled to costs incurred due to their participation and representation in the proceedings.
Court Disposition
Costs awarded to the respondent upon withdrawal of the application.
Orders
- Costs of the withdrawn application are payable to the respondent.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CONSTITUIONAL, JUDICIAL REVIEW DIVISION
MISC. CIVIL APPLICATION NO.78 OF 2016
IN THE MATTER OF: AN APPLICATION BY SAMMY MWANGI KAMAU FOR LEAVE TO INSTITUTE JUDICIAL REVIEW PROCEEDINGS FOR ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS
AND
IN THE MATTER OF: THE LAW REFORM ACT CAP 26 LAWS OF KENYA
AND
IN THE MATTER OF: THE CIVIL PROCEDURE ACT CAP 21 LAWS OF KENYA
AND
IN THE MATTER OF: ARTICLES 1, 2, 3, 19, 20, 21, 22, 23, 27, 28, 47, 159, 165 AND 259 OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF: THE FAIR & ADMINISTRATIVE ACTION ACT NO. 4 OF 2015
AND
IN THE MATTER OF: THE MEMORANDUM AND ARTICLES OF ASSOCIATION OF NYALI GOLF & COUNTRY CLUB LIMITED
AND
IN THE MATTER OF: DISCIPLINARY PROCEEDINGS AND DECISION MADE ON 17TH OCTOBER, 2016 AND NOTICE ISSUED ON 21ST OCTOBER, 2016 BY THE NYALI GOLF & COUNTRY CLUB LIMITED MAIN COMMITTEE TO SUSPEND THE APPLICANT FROM MEMBERSHIP OF THE CLUB AND DIRECTING HIM TO PAY TO THE CLUB SOME OF MONEY
BETWEEN
SAMMY MWANGI KAMAU……………………………….APPLICANT
VERSUS
NYALI GOLF & COUNTRY CLUB LTD….….......…….RESPONDENT
RULING
1. The Applicant filed application herein seeking leave to commence Judicial Review proceedings against the Respondent. The application for leave was denied by court. Subsequently, the entire application was withdrawn by the Applicant but the issue of costs remain outstanding and now forms the bone of contention between the parties. Mr. Mutubia for the Applicant and Mr. Kinyua for the Respondent have disagreed and are unable to agree on costs hence this brief Ruling. Mr. Mutubia’s submissions are that since the original application for leave to apply for Judicial Review orders were not given, there were no proceedings to form the basis of awarding costs to the Respondent.
2. Mr. Kinyua’s case is that the application for leave to apply for Judicial Review orders was served upon their client who subsequently appointed Mr. Kinyua as advocate. Subsequently, there have been proceedings in this matter which entailed representation, and hence the Respondent is entitled to costs. In the view of this court, proceedings had taken place in this matter and parties have been represented by counsel.
3. Even though the application for Judicial Review orders was served upon the order of the court, it was still served, and upon being served the Respondent appointed an advocate. If the application is subsequently withdrawn, it has to be withdrawn in the absence of any consent from the parties stating otherwise, with costs to the Respondent. It is the finding of this court that the costs are payable to the Respondent.
Dated, Signed and Delivered in Mombasa this 28th day ofFebruary, 2017.
E. K. O. OGOLA
JUDGE