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ELRCOtherPetition No. 25 of 2014 (Kisumu)· [2016] KEELRC 457 (KLR)

Anne Atieno Adul v Kisumu County Assembly Public Service Board & 4 others [2016] KEELRC 457 (KLR)

High Court of Kenya
15 September 2016
MOMaureen Onyango
1,929 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Winning a petition twice over doesn't earn you costs a third time—Kenyan courts will block repeat suits filed just to recover more legal fees.

What this practically means

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Executive summary

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This judgment resolves only the question of costs in a constitutional petition filed on 21st October 2014 by Nelco Masanya Sagwe and Peter Odera Onditi, challenging their suspension and replacement as Acting Clerk and Assistant Clerk of the County Assembly of Kisumu. The substantive issues in the petition were overtaken by events: a parallel petition, Petition No. 297 of 2014 (Anne Atieno Adul v Kisumu County Assembly Public Service Board & others), was transferred to the High Court at Kisumu and determined in favour of the petitioners, quashing the decision of 21st October 2014, including the impugned appointments. The 1st, 2nd and 5th Respondents appealed to the Court of Appeal (Kisumu Civil Appeal No. 17 & 18 of 2015), which dismissed the appeal with costs and upheld the decision of Wasilwa, J. The parties then recorded a consent adopting the Court of Appeal decision to apply to this petition but could not agree on costs. The petitioners, relying principally on Jasbir Singh Rai v Tarlochan Singh Rai, submitted that costs follow the event and that no special circumstances existed to displace that principle; the 1st Respondent contended that costs had already been awarded twice and no further costs should issue. Justice Maureen Onyango held that the petition had been compromised and rendered redundant, all claims having been granted with costs in the parallel petition and the appeal. Awarding further costs would permit a party to file multiple suits on the same facts for the sole purpose of recovering costs. The court therefore made no order for costs in this petition.

Key legal issues

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01

Whether the successful petitioners were entitled to costs of the petition after a consent adopting the Court of Appeal decision

Holding

No order for costs was made; the petition was rendered redundant and should have been withdrawn or consolidated with Petition No. 297 of 2014, and costs had already been awarded in those proceedings.

Reasoning

The court observed that all claims in this petition were aptly captured and addressed in Petition No. 297 of 2014 and in Kisumu Civil Appeal No. 17 & 18 of 2015, where the petitioners were awarded costs. Adopting the judgment of another court concedes the suit was unnecessary. Except for contempt proceedings, no other proceedings took place in this petition as none was necessary. Awarding further costs would allow a party to file multiple suits on the same facts merely to obtain costs.

p. 4

Legal principles established

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  • Costs follow the event, but where a petition is compromised by adoption of a decision in parallel proceedings in which the same claims and costs were already granted, the court may decline further costs.

Court orders

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  1. 1.Adoption of the decision in Petition No. 297 of 2014 and Kisumu Civil Appeal No. 17 & 18 of 2015 (by consent) applying to this petition
  2. 2.No order for costs in this petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 47, 159, 160, 185
  • County Government Act, 2012Sections 8(1), 13, 64(1) and (2)
  • Supreme Court ActSection 14

Cases cited (10)

  • Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others
    [2014] eKLR
  • Morgan Air Cargo Limited v Evrest Enterprises Limited
    [2014] eKLR
  • Ethics and Anti-Corruption Commission v Nderitu Wachira & 2 others
    [2016] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited
  • Devram Manji Daltani v Danda
    [1949] 16 EACA 35
  • Republic v Communications Authority of Kenya & Another
    [2015] eKLR
  • Benard Murage v Funserve Africa Ltd & 3 others
    Nairobi Pet. No. 508 of 2014
  • High Court Petition No. 24 of 2014 (ruling of Chemitei J.)
  • Kisumu Civil Appeal No. 17 & 18 of 2015
  • High Court Petition No. 297 of 2014
On appeal from
High Court at Kisumu
Petition No. 297 of 2014
Jurisdiction invoked
Constitution of Kenya 2010 (devolution/county assembly matters; petition jurisdiction of the High Court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Anne Atieno Adul v Kisumu County Assembly Public Service Board & 4 others [2016] KEELRC 457 (KLR)", Case Analysis (2016). Petition No. 25 of 2014 (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/457/eng@2016-09-15

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