Owiso & 2 others v Attorney-General & another; Law Society of Kenya & 9 others (Interested Parties)
The bottom line
#Supreme Court allows withdrawal of election appeal after clarity on issues; each party bears own costs.
What this practically means
#Three individuals who had filed a Supreme Court appeal against the electoral body decided to withdraw it after the court provided clarity on key issues. No one opposed the withdrawal, and parties noted it was a public interest matter. The court allowed the withdrawal, ordered each party to pay its own costs, and refunded the 6,000 shillings security deposit to the person who paid it.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants should be granted leave to withdraw the petition of appeal.
- 2.What orders should be made as to costs.
Key legal issues
#Whether the applicants should be granted leave to withdraw the petition of appeal.
The application to withdraw the petition of appeal was filed before the appeal was set down for hearing, and therefore it was filed on time and stands allowed.
The court noted that the applicants sought to withdraw the petition of appeal after the court provided clarity on several issues in a ruling dated August 15, 2025, and they formed the opinion that it was no longer prudent to proceed. The application was filed before the appeal was set down for hearing, satisfying the requirement under Rule 27(1) of the Supreme Court Rules, 2020. The 1st and 2nd respondents and the 4th, 7th, and 8th interested parties did not oppose the application.
What orders should be made as to costs.
No order as to costs was made, and each party was ordered to bear its own costs, as the matter was of public interest and the respondents and interested parties did not apply for costs.
The 1st and 2nd respondents as well as the 4th, 7th, and 8th interested parties did not apply for costs, citing that the appeal was a public interest matter. The court was persuaded by this assertion and declined to make any orders as to costs, ordering each party to bear its own costs.
Legal principles established
#- A party may withdraw an appeal before judgment with leave of court if the application is made in time.
- An application to withdraw is timely if filed before the appeal is set down for hearing.
- In public interest matters, the court may decline to award costs if no party applies for them.
- Security for costs deposited upon lodging an appeal must be refunded when the appeal is withdrawn.
- The court follows precedent (Lelli v Kenya Medical Training College) on withdrawal of proceedings.
- A unanimous decision by all seven judges binds the court on similar applications.
Court orders
#- 1.The notice of motion dated August 21, 2025 is allowed.
- 2.The petition of appeal dated April 23, 2025 and filed on April 24, 2025 is hereby marked as withdrawn.
- 3.Each party shall bear its costs of the application.
- 4.The sum of Kshs 6,000 deposited as security for costs upon lodging of this petition, be refunded to the depositor.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Rule 27(1) of the Supreme Court Rules, 2020
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.
The rule provides that the applicant may, with the leave of court, withdraw the proceedings at any time before delivery of judgment.
In the instant case, the application to withdraw the petition of appeal was filed before the appeal was set down for hearing. In effect, the application to withdraw the appeal was filed on time and therefore stands allowed.
Key timeline
#Practical implications
#Timing and costs for withdrawal
File a withdrawal application before the appeal is set for hearing to satisfy Rule 27(1) of the Supreme Court Rules. If the matter is of public interest, consider advising clients that opposing parties may not seek costs, reducing financial risk. Always cite Lelli v Kenya Medical Training College to support the application.
Public interest and cost exposure
If your business is an interested party in a public interest appeal, you may avoid costs if you do not oppose withdrawal. However, assess whether the appeal affects your commercial interests before deciding not to oppose. The court’s refusal to award costs here sets a precedent for similar non‑commercial disputes.
Right to withdraw an appeal
Individuals who have filed an appeal can withdraw it at any time before judgment, as long as they ask the court for permission. This is useful if new information or a court ruling makes the appeal unnecessary. In public interest cases, you may not have to pay the other side’s legal fees.
Frequently asked questions
#Can I withdraw my Supreme Court case in Kenya before judgment?+
Yes, you can apply to withdraw at any time before judgment. The court must grant leave if the application is made before the case is set down for hearing. The court followed the Supreme Court Rules, 2020 and the Lelli precedent.
Will I pay costs if I withdraw a public interest appeal in Kenya?+
Not necessarily. In this case, the court ordered each party to bear its own costs because the matter was of public interest and no party applied for costs. Always check whether the other side will seek costs.
What happens to my security deposit when I withdraw an appeal in Kenya?+
The court will order the deposit refunded to the person who paid it. In this case, Kshs 6,000 deposited as security for costs was refunded when the appeal was withdrawn.
Did the Supreme Court of Kenya allow the withdrawal of the election petition by Owiso Owiso and others?+
Yes, the court allowed the withdrawal because the application was filed before the appeal was set for hearing and no party opposed it. The appellants decided to withdraw after the court clarified issues on August 15, 2025.
Cite this brief
#Cite this brief
Caselaw, "Owiso & 2 others v Attorney-General & another; Law Society of Kenya & 9 others (Interested Parties)", Case Analysis (2025). Petition (Application) E020 of 2025. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/62/eng@2025-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.