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High CourtPartially AllowedJudicial Review Application (leave sought 29th April 2019 re Gazette Notice Number 3123 of 2019)

Republic v Registrar of Political Parties & 2 others, Ex-Parte Applicant

High Court of Kenya
9 July 2020
3,969 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Even if you withdraw a lawsuit, you may still be ordered to pay the other side's legal fees if the court finds your actions were abusive or in bad faith.

What this practically means

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Executive summary

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This ruling by Mativo J of the High Court at Nairobi disposed of the question whether the ex-parte applicant's Notice of Withdrawal dated 4th December 2019 should be allowed with or without costs. The applicant had sought leave to apply for certiorari to quash Gazette Notice Number 3123 of 2019 gazetting the third Respondent as a nominated Member of the Nairobi County Assembly, challenging her ODM nomination and gazettement. The third Respondent filed a preliminary objection on jurisdiction under sections 75(1A), (4)(a) and (b) of the Elections Act, and the matter was argued and a ruling reserved. The applicant then filed a Notice of Withdrawal while the ruling was pending. The first and third Respondents sought costs, citing the applicant's dilatory conduct, including absences and walking out of court. The applicant argued the case raised novel questions of public interest and sought each party bearing its own costs. The court, applying section 27 of the Civil Procedure Act and authorities on costs, held that costs follow the event and that withdrawal does not exempt a party from costs. It found the suit was a gross abuse of court process, being a re-litigation of a dispute already determined by the magistrates' court and the High Court on appeal, merely re-framed as judicial review. The applicant's counsel's conduct in delaying proceedings and the timing of the withdrawal evidenced bad faith. The court allowed the withdrawal but ordered the applicant to pay the first and third Respondents' costs on the higher scale.

Key legal issues

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01

Whether costs should be awarded on withdrawal of a judicial review suit

Holding

Withdrawal does not exempt a party from costs; the court considers the parties' conduct, the stage and manner of termination, and may award costs where the suit was an abuse of process

Reasoning

Section 27 of the Civil Procedure Act gives the court full discretion over costs, with costs following the event unless good reason is shown. The discretion applies to withdrawals. The applicant re-litigated a dispute already determined by the High Court, delayed the hearing, and withdrew only when a ruling on a preliminary objection was pending, which the court held was bad faith justifying costs.

p. 4
02

Whether the judicial review application was an abuse of court process

Holding

Yes - the same dispute had been litigated in the magistrates' court and determined on appeal by the High Court; re-framing it as judicial review was a gross abuse

Reasoning

The court applied the doctrine that multiplicity of actions on the same matter between the same parties, even where a right to begin exists, is an abuse. The abuse lies in the intention to harass and annoy the adversary and interfere with the administration of justice. Re-characterising the dispute as judicial review did not alter its substance.

p. 5

Legal principles established

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  • Costs follow the event unless the court for good reason otherwise directs; the discretion must be exercised judicially
  • Instituting a multiplicity of actions on the same subject matter between the same parties, even where there is a right to begin the action, is an abuse of court process
  • Re-framing an already-litigated dispute as judicial review does not change its substance and constitutes abuse of process

Court orders

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  1. 1.The applicant's Notice of Withdrawal dated 4th December 2019 is allowed
  2. 2.The suit is marked as withdrawn with costs
  3. 3.The applicant shall pay the costs of the suit to the first and third Respondents on the higher scale
Jurisdiction invoked
Judicial review jurisdiction under the Fair Administrative Action/Constitution (leave to apply for Certiorari); costs under section 27 of the Civil Procedure Act (Cap 21)

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, "Republic v Registrar of Political Parties & 2 others, Ex-Parte Applicant", Case Analysis (2020). Judicial Review Application (leave sought 29th April 2019 re Gazette Notice Number 3123 of 2019). Source: 

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