S.K. Njuguna & another v John Kiarie Waweru & another [2009] KECA 12 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that election officials who botch an election can be ordered to pay legal costs even when the petition challenging the election fails.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal should interfere with the High Court judge's discretionary order that the Returning Officer (1st appellant) and the Electoral Commission of Kenya (2nd appellant) pay the costs of the successful Member of Parliament despite the dismissal of the election petition
Key legal issues
#Interference with the trial judge's discretion on the award of costs
The judge properly exercised his discretion in ordering the Returning Officer and the Electoral Commission to pay the successful Member of Parliament's costs, because his findings showed the Returning Officer's dereliction and incompetence justified the petition even though it failed.
Counsel agreed costs are discretionary. Applying the Mbogo v Shah test, the court examined the judge's findings: the Returning Officer failed to announce tallied results, filled in new Forms 16A and 17A after certifying results, and his conduct fuelled the tallying-centre mayhem. Those findings of dereliction of duty supplied a justifiable basis for the costs order, so the discretion was not wrongly exercised and the appeal had to fail.
Effect of findings of electoral malpractice that do not affect the result
Irregularities attributable to the Commission and Returning Officer were proved to be justified complaints, but did not have a direct effect on the actual results, which is why the petition failed yet costs were still awardable against them.
The High Court had found some complaints against the Electoral Commission and the Returning Officer justified, notably the failure to announce tallied results promptly and the improper completion of Forms 16A and 17A after certification, but held the petitioner failed to prove these rendered the election not a true reflection of the voters' will. The Court of Appeal treated those adverse findings as a legitimate foundation for the costs discretion.
Legal principles established
#- An appellate court will not interfere with a judge's exercise of discretion on costs unless the judge misdirected himself, arrived at a wrong decision as a result, or it is manifest he was clearly wrong causing misjustice.
- Costs remain in the discretion of the court, and a party against whom an election petition is dismissed may nonetheless be condemned to pay costs where the dismissal rests on the petition not affecting the result while the party's conduct was culpable.
Court orders
#- 1.The appeal is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi (Milimani Commercial Courts)
- H.C. Election Petition No. 13 of 2008
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over the High Court's decision on the order for costs in an election petition (Cap 7 election petition regime; specific provision not stated in the judgment)
Relief refused
#Setting aside the High Court's order that the two appellants pay the costs of the 2nd respondent
The court found justifiable reasons in the judge's findings on the Returning Officer's incompetence and the Commission's conduct to condemn the appellants to costs notwithstanding the dismissal of the petition
Costs
Appeal dismissed with costs to the respondents; the underlying order that the 2nd and 3rd respondents in the petition (the appellants herein) pay the costs of the 1st respondent stands.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We reiterate that the issue of costs is in the discretion of the court and in this appeal we are satisfied that there were justifiable reasons why the appellants herein were ordered to pay the costs although the Election Petition against them was dismissed.
That being our view of the matter we find no merit in this appeal and we order that the same be and is hereby dismissed with costs to the respondents.
a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the Judge in exercising his discretion has misdirected himself in some matter
Further, the 2nd respondent (sic) action in filling in new Form 16As and the Form 17A after he had certified the results that were officially announced by the 3 rd respondent as the true and correct results, was evidence of the 2nd respondent's incompetence in presiding over elections of such importance and magnitude.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "S.K. Njuguna & another v John Kiarie Waweru & another [2009] KECA 12 (KLR)", Case Analysis (2009). Civil Appeal 219 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/12/eng@2009-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.