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Case Brief · caselaw.co.ke
Supreme CourtAllowedPetition 14 (E016) of 2022

Abdirahman v Mandera County Government & 5 others

Supreme Court of Kenya
4 November 2022
1,192 words in judgment
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AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Withdrawing an appeal before hearing means each side pays its own costs.

What this practically means

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If you withdraw a court case before it is heard, you usually do not have to pay the other side's legal fees. The Supreme Court said costs follow the event—meaning the winner gets costs—but if no hearing happens, there is no event. Even if the other side attended mentions, that is not enough to award costs. This applies even in public interest cases.

Executive summary

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The applicant, Ismail Abdullahi Abdirahman, filed a petition of appeal against a Court of Appeal ruling delivered on June 24, 2022, concerning funds under the supplementary budget of Mandera County. He also filed an application for conservatory orders. Before the matter could be heard, the funds were released and utilized, rendering the appeal moot. The applicant sought to withdraw the petition of appeal. The 1st, 3rd, and 4th respondents did not oppose the withdrawal but prayed for costs, arguing they had incurred attendances. The 2nd respondent had filed a preliminary objection challenging jurisdiction, but it was not heard. The Supreme Court allowed the withdrawal, applying its earlier decision in Sonko v Clerk, County Assembly of Nairobi City & 12 others, and held that since the appeal was withdrawn before it was ripe for hearing and before the event to which costs would follow had materialized, each party should bear its own costs. The court noted the public interest nature of the dispute and that no prejudice was suffered by the respondents. The final orders were that the notice of motion to withdraw was allowed and each party to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the petition of appeal should be withdrawn
  2. 2.What order on costs should be made

Key legal issues

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01

Whether costs should be awarded when a petition of appeal is withdrawn before hearing.

Holding

Costs should not be awarded where the appeal was withdrawn before it was ripe for hearing and the event to which costs would follow had not materialized.

Reasoning

The court applied the principle from Jasbir Singh Rai that costs normally follow the event, but found that no such event had occurred because the appeal was withdrawn before substantive responses or submissions were filed, and the substratum of the appeal (public funds) had been overtaken by events. The court distinguished the case from one where a party had fully participated and the matter was ripe for hearing, noting that the respondents' attendances were limited to mentions and no prejudice was suffered.

Legal principles established

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  • Costs normally follow the event: the winning party gets costs from the loser.
  • If a case is withdrawn before hearing, no event has occurred for costs to attach.
  • Limited court attendances (mentions) do not constitute prejudice warranting costs.
  • Public interest nature of a dispute does not automatically change cost rules.
  • Each party bears own costs when an appeal is withdrawn before it is ripe for hearing.

Court orders

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  1. 1.The notice of motion dated July 22, 2022 and filed on July 26, 2022 seeking to withdraw the petition of appeal dated June 27, 2022 and filed on June 28, 2022 be and is hereby allowed.
  2. 2.Each party shall bear its costs thereof.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal
Jurisdiction invoked
Article 163(4)(a) of the Constitution (implied from the nature of the appeal from the Court of Appeal)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Each party shall bear its costs thereof.
p. 4 Costs order
While applying the principle in Jasbir Singh Rai that costs normally follow the event, has an event to which costs would follow materialized? The answer is in the negative.
p. 4 Costs - event not materialized
we see no reason to award costs, the limited court attendances by the respondents, which were in any event of the nature of mentions notwithstanding.
p. 4 Costs - no prejudice

Key timeline

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2022-06-24
Court of Appeal ruling on Mandera County supplementary budget funds.
2022-06-27
Petition of appeal filed in Supreme Court.
2022-07-22
Notice of motion to withdraw appeal filed.
2022-07-26
Motion filed (date on document).
Before hearing
Funds released and utilized, appeal becomes moot.
2022
Supreme Court allows withdrawal; each party bears own costs.

Practical implications

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For lawyers

Advise clients on early withdrawal costs

When a client wants to withdraw an appeal before any substantive hearing, advise that costs will likely not be awarded to either side. The Supreme Court held that limited mentions do not create an 'event' for costs. To avoid surprises, document all attendances and consider negotiating costs before withdrawal.

For businesses

Withdraw early to avoid cost liability

If your business is involved in litigation and decides to withdraw early—before the case is ripe for hearing—you generally will not have to pay the other side's legal fees. This reduces financial risk when a dispute becomes moot or no longer worth pursuing. However, once substantive responses are filed, cost rules may differ.

For individuals

You can withdraw without paying opponent's costs

If you file an appeal in Kenya and later decide to withdraw it before any real hearing, you usually will not be ordered to pay the other party's legal costs. The court said costs follow a 'winning event,' and withdrawal before hearing is not such an event. This protects individuals from unexpected cost burdens when cases become unnecessary.

Frequently asked questions

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Can I withdraw my appeal in Kenya without paying the other side's costs?+

Yes, if you withdraw before the appeal is ripe for hearing and before any substantive event occurs. The Supreme Court in this case held that each party bears its own costs because no 'event' happened for costs to follow.

What does 'costs follow the event' mean in Kenyan courts?+

It means the losing party pays the winning party's legal costs. But if a case is withdrawn before a hearing, there is no winner or loser, so no costs are awarded. This principle was applied in the Abdirahman case.

Does public interest affect cost orders in Kenyan Supreme Court cases?+

Not automatically. While the court noted the public interest nature of the dispute, it still applied the general rule that costs follow the event. Public interest alone does not change the outcome on costs.

What if I withdraw a case after the other side has filed responses in Kenya?+

The outcome may differ. In this case, only limited mentions occurred, not substantive responses. If the other side has filed detailed submissions or the case is ready for hearing, a court might award costs to the party that incurred expenses.

Cite this brief

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Cite this brief

Caselaw, "Abdirahman v Mandera County Government & 5 others", Case Analysis (2022). Petition 14 (E016) of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/71/eng@2022-11-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.