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Supreme CourtAllowedPetition (Application) E010 of 2024 & Petition E011 of 2024 (Consolidated)

Dock Workers Union & another v Portside Freight Terminals Limited & 10 others

Supreme Court of Kenya
8 November 2024
1,099 words in judgment
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AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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You can withdraw your Supreme Court case anytime before judgment, but costs may apply.

What this practically means

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The Supreme Court of Kenya ruled that a party can withdraw a case at any time before judgment is delivered. The court cannot stop you from withdrawing, but it can order you to pay costs if appropriate. In this case, the Dock Workers Union withdrew its appeal because the project would benefit its members. The court allowed the withdrawal and did not order costs since no one opposed it and no one was prejudiced.

Executive summary

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This ruling by the Supreme Court of Kenya (a four-judge bench) concerns an application by the Dock Workers Union (the 1st appellant) to withdraw SC Petition No E010 of 2024, which was consolidated with SC Petition No E011 of 2024 filed by Okiya Omtatah Okoiti. The Union sought withdrawal on grounds that the project in dispute would benefit its members and the public, and that its participation had not been authorized by its Executive Committee or membership. The 2nd appellant opposed the motion, alleging improper motives and perjury by the Union's Secretary General. The court, applying rule 27(1) of the Supreme Court Rules, 2020, and its precedent in Salat v Independent Electoral and Boundaries Commission & 7 others, held that a party's right to withdraw proceedings cannot be denied. It allowed the withdrawal, noting that no respondent had opposed the motion. On costs, the court exercised its discretion under the principle from Rai & 3 others v Rai, Estate of & 4 others that costs follow the event, but made no order as to costs because the 2nd appellant did not seek costs, no respondent had filed responses, and there was no prejudice. The effect is that SC Petition No E010 of 2024 is marked as withdrawn, leaving SC Petition No E011 of 2024 as the only petition of appeal in the matter.

Questions the Court framed

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

  1. 1.Whether the Dock Workers Union should be granted leave to withdraw SC Petition No E010 of 2024
  2. 2.What orders as to costs should be made

Key legal issues

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01

Whether a party may withdraw proceedings before delivery of judgment

Holding

Yes, a party may withdraw proceedings at any time before delivery of judgment with leave of the court, and the court cannot prohibit such withdrawal.

Reasoning

The court applied rule 27(1) of the Supreme Court Rules, 2020, which expressly permits withdrawal with leave. It also relied on its precedent in Salat v Independent Electoral and Boundaries Commission & 7 others, which affirmed that a party's right to withdraw cannot be taken away, and the court's only role is to consider costs. Despite the 2nd appellant's opposition alleging improper motives, the court allowed the withdrawal, noting that the Union had expressed its desire and no respondent had opposed the motion.

02

What costs order should be made upon withdrawal of an appeal

Holding

No order as to costs, as the 2nd appellant did not seek costs, no respondent had filed responses, and there was no prejudice to any party.

Reasoning

The court exercised its discretion under the principle that costs follow the event, as established in Rai & 3 others v Rai, Estate of & 4 others. It noted that the 2nd appellant did not seek costs in his replying affidavit, the respondents had not filed any responses or substantive submissions, and the withdrawal caused no prejudice. Therefore, the court made no order as to costs.

Legal principles established

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  • A party has an absolute right to withdraw proceedings before judgment with the court's leave.
  • The court cannot bar a party from withdrawing its case, but may award costs.
  • Costs follow the event, meaning the losing party usually pays, but the court has discretion.
  • Withdrawal is allowed even if other parties oppose it, as long as no prejudice is shown.
  • A party's internal authorization issues do not prevent withdrawal of a court case.

Court orders

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  1. 1.The applicant's notice of motion dated August 14, 2024 be and is hereby allowed
  2. 2.SC Petition No E010 of 2024 dated March 21, 2024 and filed on April 4, 2024, be and is hereby marked as withdrawn, leaving SC Petition No E011 of 2024 Okiya Omtatah Okoiti v Portside Freight Terminals Limited & 10 others as the only petition of appeal
  3. 3.There shall be no orders as to costs

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

Wrote the judgment

majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
William Ouko
I. Lenaola W. OukoSCJ
Currently serving
majority
Jurisdiction invoked
Rule 27 of the Supreme Court Rules, 2020 and Practice Direction No 48 of the Supreme Court (General) Practice Directions, 2020
Consolidated with
SC Petition No E011 of 2024 Okiya Omtatah Okoiti v Portside Freight Terminals Limited & 10 others

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.

A party's right to withdraw a matter before the court cannot be taken way. A court cannot bar a party from withdrawing his matter. All that the court can do is to make an order as to costs where it is deemed appropriate.
p. 4 Right to withdraw proceedings

Key timeline

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2024-03-21
SC Petition No E010 of 2024 filed by Dock Workers Union.
2024-04-04
Petition formally filed in court.
2024-08-14
Dock Workers Union files notice of motion to withdraw the petition.
2024-08-14
Supreme Court allows withdrawal, marks petition as withdrawn, no costs ordered.

Practical implications

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For lawyers

Withdrawal strategy and costs risk

When advising clients on withdrawing appeals, note that the court cannot deny withdrawal but may impose costs. To minimize costs risk, ensure no prejudice to respondents and avoid seeking costs yourself. File a formal motion under rule 27(1) of the Supreme Court Rules, 2020, and consider timing—withdraw before respondents incur significant expenses.

For businesses

Flexibility to exit litigation

If your business is a party to a Supreme Court case and circumstances change (e.g., the dispute becomes moot or beneficial), you can withdraw without penalty if no one opposes. This ruling gives you a safety valve to abandon litigation that no longer serves your interests, provided you act before judgment and manage costs exposure.

For individuals

Your right to drop a case

If you file a case in the Supreme Court and later decide to stop, you can do so by asking the court's permission. The court must allow it, but you might have to pay the other side's legal fees if they have already spent money. In this case, no costs were ordered because no one objected, so you can withdraw without financial penalty if the other side agrees.

Frequently asked questions

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Can I withdraw my Supreme Court case in Kenya at any time?+

Yes, you can withdraw your case at any time before the judge delivers judgment. You need the court's permission, but the court cannot refuse your request. However, the court may order you to pay the other side's costs if they have been inconvenienced.

What happens to costs if I withdraw my case in Kenya?+

The court decides who pays costs. Usually, the person withdrawing pays the other side's costs, but the court has discretion. In this case, no costs were ordered because no one opposed the withdrawal and no one was prejudiced. If the other side has filed responses, you may have to pay.

Can the court stop me from withdrawing my case in Kenya?+

No, the court cannot stop you from withdrawing your case. The Supreme Court confirmed that a party's right to withdraw cannot be taken away. The court's only power is to decide whether to order costs. So you are free to drop your case, but you may have to pay for it.

What is the rule for withdrawing a case in the Supreme Court of Kenya?+

Rule 27(1) of the Supreme Court Rules, 2020 says you can withdraw your case with the court's leave at any time before judgment. You must file a formal application. The court will grant it unless there is a strong reason not to, but it can still order costs against you.

Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Dock Workers Union & another v Portside Freight Terminals Limited & 10 others", Case Analysis (2024). Petition (Application) E010 of 2024 & Petition E011 of 2024 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/66/eng@2024-11-08

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