Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherNot stated in judgment· [2025] KEELC 3422 (KLR)

Wamakima t/a the Fedge Residency v Kimemia & 4 others (Environment and Planning Petition E043 of 2024) [2025] KEELC 3422 (KLR)

Environment and Land Court
30 April 2025
AOA. Omollo
1,109 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Withdrawing a constitutional petition in Kenya does not automatically mean you must pay the other side's legal costs.

What this practically means

#

Executive summary

#
This judgment concerns only the question of costs after the Petitioner withdrew his constitutional petition; the 3rd to 5th Respondents made no costs claim. The Petitioner, relying on Section 27 of the Civil Procedure Act and Rosaline Njeri Macharia, urged the court to exercise its discretion against awarding costs, arguing the 1st Respondent demolished the offending wall only after the suit was filed, amounting to misconduct disentitling the Respondents from costs. The 1st and 2nd Respondents, citing Section 27, Ocean Engineering Works and Jasbir Singh Rai, submitted they were entitled to costs as parties who had incurred costs in retaining counsel and filing a Replying Affidavit, costs following the event. The court held that on a withdrawal the reasons are not examined and the withdrawing party is not necessarily the loser, distinguishing Jasbir Singh Rai since neither side was successful. Turning to Rule 26 of the 2013 Practice and Procedure Rules, and applying Feisal Hassan, the court held that in constitutional litigation access to court overrides the costs-follow-the-event principle unless the petition was wholly frivolous or an abuse of process. Since the Respondents had known of the complaints before filing but had not shared their approved plans or licences, the inference was that the Petitioner had genuine, unaddressed concerns; the suit was withdrawn early with minimal costs. The court declined to award costs. Delivered at Nairobi on 30 April 2025 by A. Omollo, J.

Key legal issues

#
01

Whether costs follow the event on withdrawal of a constitutional petition

Holding

The court declined to award costs; in constitutional litigation, access-to-court considerations override the costs-follow-the-event principle absent frivolity or abuse of process

Reasoning

Section 27 of the Civil Procedure Act embodies the general rule that costs follow the event, but Rule 26 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 requires the court to ensure access to the court in exercising its discretion on costs. Relying on Feisal Hassan, the court held that costs are withheld unless the petition was wholly frivolous or an abuse of process. Here the petition was withdrawn early, costs were minimal, and the court could not find it frivolous.

p. 3
02

Whether the Jasbir Singh Rai principle (successful party entitled to costs) applied

Holding

Distinguished - neither party could be said to have been successful since the suit was merely withdrawn

Reasoning

The court held that on a withdrawal the court does not examine the reasons, and a withdrawal does not make the Petitioner a loser. The Jasbir Singh Rai holding that the party who calls forth the event bears costs if the suit fails presupposes a successful party, which cannot be identified on a withdrawal. It was therefore distinguishable on the facts.

p. 2

Legal principles established

#
  • Where a suit is withdrawn, the court does not inquire into the reasons for withdrawal, and withdrawal does not necessarily imply the withdrawing party is the loser
  • In constitutional litigation, the principle of access to court overrides the general principle that costs follow the event unless the petition was wholly frivolous or an abuse of process

Court orders

#
  1. 1.Costs not awarded to the 1st and 2nd Respondents following the withdrawal of the Petition
  2. 2.No costs awarded to any party

Authorities

#

Legislation

  • Civil Procedure ActSection 27
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 26
  • Constitution of KenyaArticles 22 and 258

Cases cited (4)

  • Rosaline Njeri Macharia vs Daima Bank Ltd
    (2012) eKLR
  • Ocean Engineering Works Ltd & Another vs SBM Bank Ltd
    (2024) KEELC 4724 (KLR)
  • Jasbir Sing Rai & 3 Others vs Tarlochan Singh Rai & 4 Others
    S.C Pet. No. 4 of 2012 (2014) eKLR
  • Feisal Hassan & 2 others vs Public Service Board of Marsabit County & another
    [2016] eKLR
Jurisdiction invoked
Article 22 and 258 of the Constitution (constitutional petition for enforcement of rights); Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, Rule 26

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Wamakima t/a the Fedge Residency v Kimemia & 4 others (Environment and Planning Petition E043 of 2024) [2025] KEELC 3422 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3422/eng@2025-04-30

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