Michael Odoyo Nyakwaka v Boaz Owiti Okoth & 2 others [2013] KEMC 5 (KLR)
The bottom line
#A Kenyan election petitioner who withdrew his case after a full hearing still had to pay all respondents' costs, because costs follow the event under the Elections Act.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to withdraw the election petition should be granted after full hearing but before judgment
Leave was granted; the notice of withdrawal had been duly gazetted, the prescribed seven days elapsed without anyone seeking substitution, and the respondents did not object to the withdrawal itself, contesting only costs
The court noted the petition had been fully heard with submissions filed and a judgment date pending. However, the petitioner had published the prescribed notice of withdrawal in the Kenya Gazette and no person had come forward within seven days seeking to be substituted. All counsel for the respondents indicated no objection to the withdrawal, pitching only for costs. The court therefore allowed withdrawal, reserving the question of costs.
Whether costs should be awarded to the respondents upon withdrawal
All three respondents were awarded costs since under section 84 of the Elections Act costs follow the event, and the event was the withdrawal of a fully litigated petition
The court held that the petition had been contentious from the start through trial, with all parties participating and counsels filing submissions. Section 84 of the Elections Act mandates that costs follow the event, which was the withdrawal. It would be unfair to deny respondents costs after defending a fully heard petition involving pleadings, research, submissions and attendances. The 1st respondent's claim to costs was uncontroverted, and the taxpayer argument against awarding costs to the 2nd and 3rd respondents was rejected.
Legal principles established
#- An election court shall award costs of and incidental to an election petition and such costs shall follow the event/causal event, including the withdrawal of a petition
- The issue of costs is a serious matter which a petitioner must contemplate when filing a petition because of the mandatory deposit of security for costs soon after filing
Court orders
#- 1.The petitioner's application to withdraw the petition is allowed and the petition is marked as withdrawn
- 2.All three respondents are awarded costs of the petition
- 3.A certificate of determination in accordance with section 86(1) of the Elections Act shall be issued to the Independent Electoral and Boundaries Commission, which shall notify the relevant Speaker once costs have been assessed
- 4.Counsel to file their bills of costs for taxation and/or assessment within seven days from the date of the ruling, to be ready for assessment on 14th August 2013
- Jurisdiction invoked
- Elections Act, 2011 (sections 78, 84 and 86(1)) and the Elections (Parliamentary and County Elections) Petition Rules, 2013, Rule 23
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Odoyo Nyakwaka v Boaz Owiti Okoth & 2 others [2013] KEMC 5 (KLR)", Case Analysis (2013). Election Petition Number 1 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/5/eng@2013-08-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.