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MagistrateOtherNot stated in the judgment· [2013] KEMC 9 (KLR)

Leonard Kikpngeno Korir v Irene Jerop Cheboi & 2 others [2013] KEMC 9 (KLR)

Chief Magistrate's Court (Election Petition)
30 August 2013
900 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cut costs in a withdrawn election petition, confirming petitioners who act in good faith and withdraw promptly pay only modest, scale-based costs.

What this practically means

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Executive summary

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This is a costs ruling arising from the withdrawal, by consent of all parties on 22nd August 2013, of an election petition concerning the Mauche Ward County Representative seat. The 1st Respondent had initially been declared winner and issued a certificate; the 2nd and 3rd Respondents (the election bodies) admitted a tallying error, cancelled that certificate, and gazetted the Petitioner as the validly elected representative. The 1st Respondent had contested the cancellation and sought to be confirmed winner, while the Petitioner filed the petition and then withdrew it after his gazettement. The court apportioned blame for the litigation: the 2nd and 3rd Respondents could not escape blame for the admitted tallying mistake; the 1st Respondent had effectively conceded defeat by consenting to withdrawal and her Response conflicted with that of the co-Respondents; and the Petitioner acted in good faith, filing the petition because he could not be certain who would be gazetted and withdrawing promptly to mitigate costs. Applying note 2 of Schedule VII of the Advocates (Remuneration) Order, 2009, the court held the case presented no complexity justifying costs above the scale, since the only issue - an admitted tallying error at one voting centre - was straightforward and court appearances were brief mentions. The court ordered the Petitioner to pay the 1st Respondent KShs 12,000 and the 2nd and 3rd Respondents jointly KShs 18,000, as minimal all-inclusive costs.

Key legal issues

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01

Apportionment of costs following consentual withdrawal of an election petition

Holding

Costs apportioned modestly against the Petitioner in light of his good faith and the Respondents' own responsibility for the litigation

Reasoning

The court held the Petitioner could not be faulted for filing the petition since he could not be sure who would be gazetted, and withdrew promptly after being gazetted to avoid unnecessary costs. The 2nd and 3rd Respondents admitted a tallying error, and the 1st Respondent's conflicting Response showed the burden at trial would have weighed on her. The issues were simple and admitted, so no complexity justified costs beyond the scale.

p. 2
02

Whether complexity justified enhanced costs under Schedule VII of the Advocates (Remuneration) Order, 2009

Holding

No complexity existed; only a single admitted tallying error at one voting centre was in issue

Reasoning

The court applied note 2 of Schedule VII, allowing enhancement only on special grounds. It found the sole issue was whether there was an error in tallying votes at one voting centre, which was admitted, and the co-Respondents' short Response proved the absence of complexity. Court appearances lasted only about fifteen minutes at mentions.

p. 2

Legal principles established

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  • Party and party costs should only exceed the scale on a special ground arising from the nature, importance, difficulty or urgency of the case
  • Complexity of a case can justify an increase in costs above the scale

Court orders

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  1. 1.The Petitioner to pay the 1st Respondent costs of twelve thousand shillings (KShs 12,000)
  2. 2.The Petitioner to pay the 2nd and 3rd Respondents jointly a sum of eighteen thousand shillings (KShs 18,000)

Authorities

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Legislation

  • Advocates (Remuneration) Order, 2009Schedule VII, note 2
Jurisdiction invoked
Election petition jurisdiction over the Mauche Ward County Representative election; costs discretion under Schedule VII of the Advocates (Remuneration) Order, 2009

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, "Leonard Kikpngeno Korir v Irene Jerop Cheboi & 2 others [2013] KEMC 9 (KLR)", Case Analysis (2013). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/9/eng@2013-08-30

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