[2013] KEHC 1115 (KLR)
The court found that the petitioner had complied with all procedural requirements for withdrawal of the election petition, including publication of the notice in the Kenya Gazette. Since both respondents did not object to the withdrawal and had incurred costs in defending the petition, the court exercised its...
Source-derived case information.
- Citation
- [2013] KEHC 1115 (KLR)
- Parties
- Applicant: Hon. Samuel Kambi Kazungu; Respondent: Hon. Chea Gunga Mwinga; Respondent: Independent Electoral and Boundaries Commission
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Election Petition 10 of 2013
- Procedural Posture
- Election Petition / Withdrawal Application Ruling
- Outcome
- Petition withdrawn; costs awarded to respondents subject to cap.
- Legal Topics
- Withdrawal of Election Petition, Costs Award, Jurisdiction of Election Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hon. Samuel Kambi Kazungu
Applicant
Hon. Chea Gunga Mwinga
Respondent
Independent Electoral and Boundaries Commission
Respondent
Procedural Posture
Election Petition / Withdrawal Application Ruling
Legal Issues
- 1 Whether the petitioner should be permitted to withdraw the election petition.
- 2 How costs should be awarded upon withdrawal of the petition before hearing.
Ratio Decidendi
The court found that the petitioner had complied with all procedural requirements for withdrawal of the election petition, including publication of the notice in the Kenya Gazette. Since both respondents did not object to the withdrawal and had incurred costs in defending the petition, the court exercised its discretion under Rule 34(1)(a) of the Election Petition Rules to award and cap costs. The court considered the nature and complexity of the work, the constitutional imperative for expeditious hearing of election petitions, and the additional expenses incurred by counsel, including travel and time spent in Malindi. Accordingly, the court allowed the withdrawal, marked the petition as...
Court Disposition
Petition withdrawn; costs awarded to respondents subject to cap.
Orders
- The petition is marked as duly withdrawn.
- The petitioner shall pay the respondents a total of Kshs. 2.5 million in costs, capped at Kshs. 1.0 million for the 1st respondent and Kshs. 1.5 million for the 2nd respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MALINDI
ELECTION PETION NO. 10 OF 2013
HON. SAMUEL KAMBI KAZUNGU..........................................................PETITIONER
-VERSUS-
HON. CHEA GUNGA MWINGA...............................................................1ST RESPONDENT INDEPENDENT ELECTORAL AND
BOUNDARIESCOMMISSION.........................................................2ND RESPONDENT
RULING
On 10TH June 2013, the Petitioner filed an application under Rule 23(3)of the Elections (Parliamentary and County Election} Petition Rules, 2013{hereinafter referred to as Election Petition Rules)seeking to withdraw this petition. The Petitioner states that he has been compelled to withdraw the petition because of his recent appointment by the President to be the Cabinet Secretary for Labour, Social Security and Services. In compliance with Rule 24(2)of the Election Petition Rules,the Petitioner has published the notice of withdrawal of the petition in the Kenya Gazette. The notice appears as Gazette Notice No.8631of 21ST June 2013. Both Respondents do not object to the Petitioner withdrawing
the petition. This court therefore allows the Petitioner to withdraw this petition. The petition is marked as duly withdrawn.
As to the issue of costs, there is no doubt that the Respondents incurred costs in defending this petition. Since this court was seized with jurisdiction to hear the petition, it became aware of the tremendous work that the Respondents have put in preparing and in defending this petition. Costs usually follow the event. They are entitled to be paid costs for their troubles. However, this court notes that the petition was withdrawn before the formal hearing of the petition
Malindi-Elec. Petition No.10 of2013- Ruling 2Page1
commenced. There were preliminary issues which this court dealt with that required attendance by counsel. I have taken that too into account for the order that I will shortly issue pursuant to Rule 34 (1)of the Election Petition Rules.
Rule 34 (1) (a)of the Election Petition Rulesgrants this court jurisdiction to cap the total amount of costs that shall be paid in respect of the petition. In the instant petition, the Petitioner shall pay to the Respondents costs of petition. I have taken into account the nature and the complexity of work involved in defending Election Petitions. I have also taken into account the fact that counsel were forced to suspend other legal work because of the Constitutional imperative that requires Election Petitions to be heard and determined within six (6) months from the date of the publications of the results. I have also taken into consideration that counsel for the Respondents were compelled to travel to Malindi and spend several days here as they attended court. This constituted additional expense. Taking all these factors into consideration, I will cap the total costs to be awarded to the Respondents by the Petitioner at Kshs.2. 5 million. The 1st Respondent shall be awarded a maximum of Kshs.1. 0million costs while the 2nd Respondent shall be awarded a maximum of Kshs. l.5 million costs. The Respondents shall present their respective bills of costs for taxation to the Deputy Registrar of this court subject to the above limit. The sum of Kshs.5OO,OOO/- deposited by the Respondents shall be applied, in the first instance, towards the settlement of the said costs. It is so ordered.
DATED ATMALINDI THIS 3RD DAY OF JULY 2013
L. KIMARU
JUDGE
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