Dickson Daniel Karaba v Kibiru Charles Reubenson & 5 others [2018] KECA 477 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that once you withdraw an election petition, you cannot revive it on appeal, and slashed the record Kshs. 10 million costs award in half.
What this practically means
#Executive summary
#Key legal issues
#Effect of withdrawal of an election petition on interlocutory rulings
Once the petition and all applications in it were withdrawn, the appellant retained no rights to appeal or revisit interlocutory rulings; only taxation of costs remained pending.
The appellant himself sought leave to withdraw the petition and to have all subsequent applications marked withdrawn. That motion succeeded, so the petition, the applications and the rulings made on them were 'no more'. While a petitioner may ordinarily challenge interlocutory rulings on appeal from a final decision (Cornel Rasanga), that right presupposes a final decision in a live petition; a withdrawn petition leaves nothing to pursue.
Substitution of petitioners under rule 24 of the Election (Parliamentary and County Elections) Petition Rules, 2017
Substitution is discretionary, not automatic; the Judge properly refused both applications for substitution.
The 4th and 5th respondents deposed that they were registered voters in three different counties, an offence under Section 4(1)(a)(i) and (c) of the Elections Act, disqualifying them from the court's discretion; their application came at the tail end of a fully heard petition and would interfere with the statutory 6-month timeline. The 6th respondent failed to disclose his own election petitions, one dismissed and unappealed, and had not paid its costs.
Award of costs in election petitions
The total award of Kshs. 10,000,000/= was excessive and was reduced by half, capping each set of costs at Kshs. 2,500,000/=, subject to taxation.
Election disputes are public interest litigation and do not belong to the petitioner alone. Costs must follow the event under Section 84 of the Elections Act, but must be guided by fairness, justice and access to justice so that losing parties are not punished in a way that deters litigants from challenging elections.
Legal principles established
#- A petitioner who withdraws an election petition, including the applications filed in it, cannot on appeal revive or revisit interlocutory rulings made in the withdrawn petition.
- There is no automatic right to substitution as a petitioner in an election petition; the election court has a discretion to grant or refuse substitution.
- Costs in election petitions, which are public interest litigation, should not be so excessive as to punish a losing party or deter litigants from approaching the court; election courts must be guided by fairness, justice and access to justice.
- A court is entitled to draw a negative inference against a party who withholds material evidence within its knowledge.
Court orders
#- 1.Both appeals dismissed with costs to the 1st, 2nd and 3rd respondents
- 2.Costs awarded in the High Court varied: costs in respect of the 1st respondent capped at Kshs. 2,500,000/=, and those to the 2nd and 3rd respondents capped at Kshs. 2,500,000/=, both subject to taxation
- On appeal from
- High Court of Kenya at Kerugoya
- Election Petition No. 4 of 2017
- Jurisdiction invoked
- Appeals from rulings of the High Court sitting as an election court under Section 80(4) of the Elections Act (First Schedule to the Constitution); petitions heard under the Election (Parliamentary and County Elections) Petition Rules, 2017
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kimele v Kiswili & another (Enviromental and Land Originating Summons E001 of 2023) [2024] KEELC 5209 (KLR)[2024] KEELC 5209 (KLR)11 Jul 2024applied
- SETH AMBUSINI PANYAKO v THE RETURNING OFFICER, KAKAMEGA COUNTY[2020] KEHC 7633 (KLR)27 Feb 2020applied
- Sammy Ndung’u Waity v Independent Electoral & Boundaries Commission & 3 others[2019] KESC 54 (KLR)8 Feb 2019
Cite this brief
#Cite this brief
Caselaw, "Dickson Daniel Karaba v Kibiru Charles Reubenson & 5 others [2018] KECA 477 (KLR)", Case Analysis (2018). Election Petition Appeal No. 3 of 2018 (as consolidated with Election Petition Appeal No. 4 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/477/eng@2018-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.