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Case Brief · caselaw.co.ke
Supreme CourtAllowedCivil Application 5 of 2019

Mohamed & another v Mohamed & 3 others

Supreme Court of Kenya
8 October 2021
1,008 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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Supreme Court allows withdrawal of election review with no costs.

What this practically means

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The Supreme Court allowed a party to withdraw their application to review a previous judgment on the Wajir County governor election. The Court noted that the applicants no longer wanted to proceed, and the other parties did not respond. Because no one showed interest in the case, the Court permitted the withdrawal. It also decided not to order anyone to pay the other side's legal fees, given the unusual circumstances.

Executive summary

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This was a ruling on a notice of withdrawal of an application for review. The 1st applicant, Ahmed Abdullahi Mohamed, sought to withdraw an application dated 18th February 2019, which he had filed together with the 2nd applicant, Ahmed Muhumud Abdi, seeking review of the Supreme Court's majority judgment of 15th February 2019 in SC Petition No. 7 of 2018. That earlier judgment had set aside the Court of Appeal's decision and upheld the election of the 1st respondent as Governor of Wajir County. The 2nd applicant had previously sought to withdraw from the review application. The 1st applicant initially opposed the 2nd applicant's withdrawal but later changed his mind. The notice of withdrawal was not by consent, so the Court directed that other parties be heard on the issue of costs. Despite several mentions and directions to file submissions, none of the parties complied. The Court, applying Rule 27 of the Supreme Court Rules, 2020, allowed the withdrawal, finding that the parties' conduct indicated no interest in the application. On costs, the Court cited its discretion under Section 21(2) of the Supreme Court Act and Rule 3(5) of the Supreme Court Rules, 2020. It applied the principle from Jasbir Singh Rai v. Tarlochan Singh Rai that costs follow the event but may be departed from in special circumstances. Given the parties' conduct, the Court made no order as to costs. The final order was that the application for review was withdrawn with no orders as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the notice of withdrawal of the application for review should be allowed.
  2. 2.What orders should be made as to costs.

Key legal issues

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01

Whether a party can unilaterally withdraw an application before the Supreme Court, and what the court's approach should be when other parties do not respond.

Holding

The Court allowed the withdrawal, finding that the conduct of the parties, including the applicants' unwillingness to proceed and the absence of any response from other parties, indicated that no party had an interest in the application.

Reasoning

The 1st applicant filed a notice to withdraw the review application. The 2nd applicant had earlier sought to withdraw and strike out his name. The other parties were served but did not file any response or submissions. The Court concluded that none of the parties had an interest in the application, and therefore allowed the withdrawal in the interests of justice.

02

What is the appropriate order as to costs when a party withdraws an application and the other parties do not participate?

Holding

The Court exercised its discretion to make no order as to costs, considering the parties' conduct and the circumstances of the withdrawal.

Reasoning

The Court cited its inherent jurisdiction under Section 21(2) of the Supreme Court Act and Rule 3(5) of the Supreme Court Rules, 2020. It noted the general rule that costs follow the event but found that the conduct of the parties, particularly their lack of interest in the proceedings, constituted special circumstances justifying a departure from that rule.

Legal principles established

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  • A party may withdraw a Supreme Court application if no other party objects or shows interest.
  • The Court has discretion to allow withdrawal even without consent from all parties.
  • Costs are normally paid by the losing party, but the Court can waive them for special reasons.
  • Parties' conduct, such as failing to respond, can be a special reason to deny costs.
  • The Supreme Court's inherent power includes managing withdrawals and costs fairly.

Court orders

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  1. 1.The application dated 18th February, 2019 and filed on 20th February, 2019 is hereby withdrawn with no orders as to costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Martha Karambu Koome
M. K. KoomeCJ
Currently serving
majority

Wrote the judgment

Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Supreme Court of Kenya
SC Petition No. 7 of 2018
Jurisdiction invoked
Rule 27 of the Supreme Court Rules, 2020 and Section 21(2) of the Supreme Court Act
Consolidated with
SC Petition No. 7 of 2018

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The application dated 18th February, 2019 and filed on 20th February, 2019 is hereby withdrawn with no orders as to costs.
p. 3 Final orders on withdrawal and costs
taking into account the conduct of the parties beginning with both applicants' intimation of their unwillingness to proceed with application, coupled with the absence of any response by the other parties, we come to the irresistible conclusion that none of the parties has an interest in the review application.
p. 2 Court's reasoning for allowing withdrawal
the award of costs would normally be guided by the principle that 'costs follow the event': the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice.
p. 3 Principles governing award of costs

Key timeline

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2019-02-15
Supreme Court delivers judgment upholding election of Wajir County Governor.
2019-02-18
Applicants file application for review of the Supreme Court judgment.
2019-02-20
Application for review is formally filed in court.
2020
1st applicant gives notice to withdraw the review application.
2020
Court allows withdrawal with no order as to costs.

Practical implications

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For lawyers

Withdrawal strategy and costs risk

When your client wants to withdraw a Supreme Court application, file a notice and be prepared to argue costs. If other parties ignore the case, the Court may allow withdrawal without costs. But if they respond, you may need to negotiate or justify no costs. Always consider the conduct of all parties.

For businesses

Litigation exit without cost penalty

If you start a court case but later decide to stop, you can withdraw without paying the other side's legal fees if they show no interest. This ruling shows that when opponents do not respond or participate, the Court may let you walk away cost-free. But act quickly and clearly communicate your intent.

For individuals

Your right to drop a court case

You can withdraw your own Supreme Court application even if the other side does not agree. The Court will consider whether anyone still cares about the case. If no one responds, you can likely withdraw without being ordered to pay the other side's legal costs. This gives you flexibility to change your mind.

Frequently asked questions

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Can I withdraw my Supreme Court case in Kenya if the other side disagrees?+

Yes, you can. The Court will decide based on the circumstances. If the other parties do not respond or show interest, the Court may allow the withdrawal. You may still need to address costs, but the Court can waive them if justified.

What happens to legal costs if I withdraw a case in Kenya?+

Usually, the losing party pays costs. But when you withdraw, the Court can decide differently. In this case, because no one participated, the Court ordered no costs. You should always ask the Court to consider the conduct of all parties.

How do I withdraw a Supreme Court application in Kenya?+

File a notice of withdrawal with the Court. If the other parties do not consent, the Court will hear them on costs. You must show that no party has an interest in continuing. The Court will then decide whether to allow the withdrawal and what costs order to make.

What is the 'costs follow the event' rule in Kenya?+

It means the losing party pays the winner's legal costs. But the Court can depart from this rule for special reasons, like when a party withdraws and the other side does not participate. The judge has discretion to make no order as to costs, as happened in this case.

Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mohamed & another v Mohamed & 3 others", Case Analysis (2021). Civil Application 5 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/1/eng@2021-10-08

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