Kenya Electricity Transmission Co Limited (KETRACO) v Instalanciones Inabensa SA
The bottom line
#Withdrawing a case late means you pay the other side's costs.
What this practically means
#The Kenya Revenue Authority tried to withdraw its Supreme Court appeal against Miguel Angel Maeras Gutierrez just six days before the hearing. KRA wanted to walk away without paying costs, arguing the court had already said it had no jurisdiction. The Supreme Court disagreed. It ruled that because the respondent had already filed responses and the case was ready for hearing, the withdrawal itself was an 'event' that triggered the usual rule: the party who causes the case to end must pay the other side's costs. KRA had to pay.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant should be granted leave to withdraw the petition of appeal with no order as to costs.
- 2.What order as to costs should be made upon withdrawal of the petition of appeal.
Key legal issues
#Whether the withdrawal of a petition of appeal after the court has determined it lacks jurisdiction constitutes an 'event' for the purposes of the costs-follow-the-event rule.
Yes, the withdrawal of the petition constitutes an event to which costs attach, and the appellant bears the costs.
The court noted that the respondent had filed a replying affidavit and submissions, and the appeal was ripe for hearing and scheduled. The appellant withdrew only six days before the hearing, three months after the ruling on jurisdiction. Applying the principle in Jasbir Singh Rai that costs follow the event, the court found that the withdrawal was the event, and the appellant failed to show good reasons why costs should not be awarded against it.
Whether the appellant's reliance on Anne Waiguru & another vs Martha Karua & 2 others, where each party bore their own costs, was applicable.
No, the Waiguru case was distinguishable because in that case the issues had been substantially addressed in another appeal, whereas here the appeal was withdrawn after the respondent had already incurred costs in defending it.
The court implicitly rejected the appellant's argument that the Waiguru precedent applied, by instead applying the general rule from Jasbir Singh Rai and ordering the appellant to bear costs. The respondent successfully distinguished Waiguru on the basis that in Waiguru there was no finding that the proceedings were a nullity, whereas here the appeal was incompetent for lack of jurisdiction.
Legal principles established
#- Withdrawing a case after the other side has responded is an 'event' that triggers the costs-follow-the-event rule.
- The party that withdraws a case late must pay the other side's costs unless it shows very good reasons not to.
- A court's earlier finding that it lacks jurisdiction does not automatically excuse the withdrawing party from paying costs.
- The precedent from Anne Waiguru (each party bears own costs) does not apply when the withdrawing party waited until the last minute.
- Costs are meant to compensate the party that has already spent time and money defending a case that is later abandoned.
Court orders
#- 1.The notice of motion dated January 24, 2022 and filed on January 25, 2023 seeking to withdraw the petition of appeal dated November 26, 2021 be and is hereby allowed.
- 2.The consent dated January 27, 2023 and filed in court on January 30, 2023 granting the appellant leave to withdraw the petition of appeal dated November 26, 2021, be and is hereby adopted as an order of the court.
- 3.The appellant shall bear the costs of the appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- section 24 of the Supreme Court Act, 2012 as read together with rules 27 and 31 of the Supreme Court Rules, 2020 and rule 47 of the Supreme Court (General) Practice Directions, 2020
Relief refused
#Appellant's prayer that each party bear their own costs of the appeal
The appellant failed to demonstrate why it should not bear the costs of the appeal; the event (withdrawal) had materialized and costs follow the event.
Costs
The appellant shall bear the costs of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
While applying the principle in Jasbir Singh Rai that costs normally follow the event, has an event to which costs would follow materialized? The answer is in the affirmative.
the appellant has failed to demonstrate why it should not bear the costs of the appeal.
The appellant shall bear the costs of the appeal.
Key timeline
#Practical implications
#Late withdrawal triggers costs liability
If your client wants to withdraw an appeal after the respondent has filed a response and the matter is set for hearing, advise them that costs will almost certainly follow unless you can show exceptional circumstances. The court will not treat a prior jurisdictional ruling as a free pass. File a consent on costs early to avoid a contested ruling.
Think twice before appealing to Supreme Court
If you are a business considering an appeal to the Supreme Court, be aware that withdrawing late can be expensive. You will have to pay the other side's legal fees even if the court later says it had no jurisdiction. Assess the strength of your case and the likelihood of success before filing, because abandoning it later will cost you.
You can recover costs if opponent withdraws
If you are an individual being sued or appealed against, and the other side tries to drop the case at the last minute, you have a strong chance of getting your legal costs paid. The court will look at whether you already spent time and money responding. Keep records of all your legal fees and ask your lawyer to demand costs if the opponent withdraws.
Frequently asked questions
#Can I withdraw a case in Kenya without paying the other side's costs?+
Generally, no. If you withdraw after the other side has already filed a response and the case is ready for hearing, the court will order you to pay their costs. You can only avoid costs if you show very good reasons, such as the other side agreeing to bear their own costs.
What does 'costs follow the event' mean in Kenyan law?+
It means the losing party pays the winning party's legal costs. In this case, the 'event' was KRA's withdrawal of the appeal. Since KRA caused the case to end, it had to pay Gutierrez's costs. The rule applies unless there is a good reason to depart from it.
Does a court lacking jurisdiction mean I don't have to pay costs in Kenya?+
No. Even if the court later finds it has no jurisdiction, if you withdraw after the other side has already spent money defending the case, you still have to pay their costs. The court looks at when you withdrew, not just the jurisdictional issue.
What is the Anne Waiguru case about costs in Kenya?+
In Anne Waiguru & another vs Martha Karua & 2 others, the court ordered each party to bear their own costs because the issues had been substantially resolved in another appeal. But that case is different from KRA's situation, where the appeal was withdrawn at the last minute after the respondent had already incurred costs.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kiptui v Kiptiony[2025] KESC 30 (KLR)23 May 2025followed
Cite this brief
#Cite this brief
Caselaw, "Kenya Electricity Transmission Co Limited (KETRACO) v Instalanciones Inabensa SA", Case Analysis (2023). Petition 17 (E024) of 2021. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/10/eng@2023-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.