Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCOtherNot stated in judgment· [2021] KEELRC 1093 (KLR)

Republic v Kenya Universities & Colleges Central Placement Service & another Ex-Parte;John Muraguri [2021] KEELRC 1093 (KLR)

Employment and Labour Relations Court
13 August 2021
MOMaureen Onyango
1,174 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to award costs against a party who withdrew their case because the other side was never formally served.

What this practically means

#

Executive summary

#
This is a costs ruling of the Employment and Labour Relations Court at Nairobi following the withdrawal by the Ex Parte Applicant of a judicial review suit. The Applicant had obtained leave on 29th September 2020 to commence judicial review proceedings and for the leave to operate as stay, but never filed the substantive motion, instead withdrawing the entire suit; only the Chamber Summons had been dealt with. The 1st Respondent did not object to withdrawal with no orders as to costs, but the 2nd Respondent, through counsel Mr Walukwe, sought costs, relying on Section 12(4) of the Employment and Labour Relations Court Act, Odunga J's decision in Joseph Odour Anode v Kenya Red Cross Society, and Kuloba J's Judicial Hints on Civil Procedure, arguing that costs follow the event since she had been called upon to defend the proceedings. The Ex Parte Applicant countered that the cause of action had dissipated upon expiry of his term, rendering the suit otiose, and that withdrawal was effectual and final, citing Mulla's Code of Civil Procedure and Smt Raisa Sultana Begam v Abdul Qadir. Onyango J found that the 2nd Respondent had only attended court when the Notice of Withdrawal was considered on 2nd November 2020, had never been served with the application for leave, and had not been called upon to respond, since the only inter partes matter was the prayer for leave to operate as stay, which did not concern her. The court accordingly ordered that the withdrawal of the suit be with no orders for costs. The ruling was delivered virtually in line with COVID-19 practice directions.

Key legal issues

#
01

Whether costs should follow the event upon withdrawal of a judicial review suit

Holding

Costs were not awarded because the 2nd Respondent had not been served and had not participated in the substantive proceedings before the withdrawal

Reasoning

The court reviewed the record and found the 2nd Respondent only attended court when the Notice of Withdrawal was considered. The chamber summons in judicial review is ordinarily ex parte; the only inter partes matter was the prayer for leave to operate as stay, which did not concern the 2nd Respondent. Having never been served or called upon to defend, the 2nd Respondent could not be said to have successfully defended proceedings warranting costs.

p. 2
02

Effect of withdrawal of a suit

Holding

Withdrawal is effectual and final, bringing the suit to an end, but the court retains discretion under Section 12(4) of the ELRC Act to make such orders as to costs as it considers just

Reasoning

The Ex Parte Applicant argued, relying on Mulla and Smt Raisa Sultana Begam, that withdrawal terminates the suit entirely so no consequential costs order can issue. The court nonetheless entertained the costs question as a discrete application and determined it on its merits, exercising the cost discretion under the ELRC Act rather than treating the withdrawal as leaving nothing pending.

p. 2

Legal principles established

#
  • Where a party was never served with proceedings and was not called upon to respond before withdrawal, costs ought not be awarded against the withdrawing party
  • In matters of costs, costs follow the event unless the court, for reasons on record, decides otherwise

Court orders

#
  1. 1.That the withdrawal of the suit is with no orders for costs

Authorities

#

Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 7(2)
  • Civil Procedure Rules, 2010Withdrawal provisions; Order 21 Rule 1
  • Employment and Labour Relations Court Act (No. 20 of 2011)Section 12(4)
  • The Constitution of KenyaArticle 159(2)(d); Article 48
  • Civil Procedure Act (Chapter 21 of the Laws of Kenya)Section 1B

Cases cited (2)

  • Smt Raisa Sultana Begam & Others v Abdul Qadir & Others
    AIR (1966) ALL 318
  • Joseph Odour Anode v Kenya Red Cross Society
    Nairobi HCC No. 66 of 2009 (2012) eKLR
Jurisdiction invoked
Section 12(4) of the Employment and Labour Relations Court Act (No. 20 of 2011); Employment and Labour Relations Court (Procedure) Rules, 2016 rule 7(2)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v Kenya Universities & Colleges Central Placement Service & another Ex-Parte;John Muraguri [2021] KEELRC 1093 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1093/eng@2021-08-13

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