Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Supreme CourtOtherPetition 14 (E021) of 2021

Sonko v Clerk, County Assembly of Nairobi City & 12 others

Supreme Court of Kenya
19 May 2022
Philomena Mbete MwiluP. M. MwiluSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. LenaolaWilliam OukoW. Ouko
928 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

#

Court rules each side pays own costs when an appeal is withdrawn before any hearing.

What this practically means

#

The Supreme Court of Kenya decided that when someone withdraws an appeal before the court has heard any arguments, the usual rule that the loser pays the winner's costs does not apply. In this case, the appeal became pointless after the governor was sworn in. Since no real legal fight happened, the court ordered each party to cover their own legal bills.

Executive summary

#
This is a brief ruling by the Supreme Court of Kenya on costs following the withdrawal of an appeal. The appellant, John Ndirangu Kariuki, had filed an appeal against the Independent Electoral and Boundaries Commission and 11 others, but withdrew it on December 10, 2021, after the 11th respondent was sworn in as Governor of Nairobi County, rendering the appeal moot. The 8th respondent sought costs, arguing that under section 21(2) of the Supreme Court Act and rule 27 of the Supreme Court Rules, costs follow the event. The appellant contended that the appeal was withdrawn at the earliest opportunity and that the issues were of public interest, relying on the Jasbir Singh Rai case for the principle that costs are discretionary. The court held that since the appeal was withdrawn before any substantive responses or submissions were filed (except a preliminary objection), no 'event' had occurred to trigger the rule that costs follow the event. Applying its discretion, the court ordered each party to bear its own costs. The ruling reaffirms that costs are not automatic upon withdrawal of an appeal and that the court retains discretion, particularly where the appeal becomes moot before hearing.

Questions the Court framed

#

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

  1. 1.Whether costs should be paid to the 8th respondent upon withdrawal of the appeal

Key legal issues

#
01

Whether costs should be awarded to the respondent upon withdrawal of an appeal before hearing.

Holding

Costs do not automatically follow the event where the appeal is withdrawn before any substantive hearing or response, and the court may order each party to bear its own costs.

Reasoning

The court noted that the appeal was withdrawn before the respondents had filed any responses or substantive submissions, except for a preliminary objection. The event that would trigger costs (a successful or unsuccessful suit) had not materialized. The court applied the principle from Jasbir Singh Rai that costs follow the event but are subject to judicial discretion, and found that since no event occurred, each party should bear its own costs.

p. 4

Legal principles established

#
  • Costs follow the event, but only if a real legal contest has occurred.
  • Courts have discretion to depart from the usual costs rule when no event has materialized.
  • Withdrawing an appeal before any substantive response or hearing does not create an event for costs.
  • Public interest or early withdrawal does not automatically exempt a party from costs, but it can influence the court's discretion.
  • Each party bears its own costs when an appeal becomes moot before hearing.

Court orders

#
  1. 1.Each party shall bear its costs of the appeal

The bench

#

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

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
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
Jurisdiction invoked
Supreme Court Act, section 21(2) and Supreme Court Rules, 2020, rule 3(5)

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 negative.
p. 4 Costs follow the event
We therefore come to the conclusion that each party shall bear its costs before this court.
p. 4 Costs order
We now order that each party shall bear its costs of the appeal.
p. 4 Final orders

Key timeline

#
2021-12-10
Appellant withdraws appeal after 11th respondent sworn in as Nairobi Governor.
Ruling date
Supreme Court orders each party to bear its own costs.

Practical implications

#
For lawyers

Costs strategy on early withdrawal

When advising clients on withdrawing an appeal before any substantive response, note that costs are not automatic. File a notice of withdrawal early and argue no event occurred. If the other side has already filed a preliminary objection, that alone may not trigger costs. Use Jasbir Singh Rai to support discretion.

For businesses

Manage litigation cost risks

If you are a respondent in an appeal that becomes pointless (e.g., due to a change in circumstances), you cannot assume you will recover your legal costs if the appellant withdraws early. To protect your position, consider filing a substantive response quickly to create an 'event' that may justify a costs order.

For individuals

Withdrawing an appeal? Know costs

If you withdraw a court case before any real hearing, you may not have to pay the other side's legal fees. But this is not guaranteed—the judge decides. To improve your chances, withdraw as early as possible and explain why the case became unnecessary. Always get legal advice before withdrawing.

Frequently asked questions

#
What does 'costs follow the event' mean in Kenya?+

It means the losing party in a court case usually pays the winner's legal costs. But the court can decide otherwise. In this Supreme Court case, the appeal was withdrawn before any hearing, so no one 'won' or 'lost'—so each side paid its own costs.

Can I withdraw my appeal in Kenya without paying the other side's costs?+

Yes, if you withdraw before the other side files a response or before any hearing. The court has discretion. In this case, the appellant withdrew early and the court ordered each party to bear its own costs. But if the other side has already done significant work, you may still be ordered to pay.

What happens to costs if an appeal becomes pointless in Kenya?+

The court can order each party to pay its own costs. In this case, the appeal became moot after the governor was sworn in. Since no real legal contest occurred, the Supreme Court decided not to award costs to either side.

Does public interest affect costs orders in Kenyan courts?+

Public interest can influence the court's discretion, but it does not automatically exempt a party from costs. In this case, the appellant argued public interest, but the court focused on the fact that no event had occurred. Each case is decided on its own facts.

Later judgments citing this (5)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Sonko v Clerk, County Assembly of Nairobi City & 12 others", Case Analysis (2022). Petition 14 (E021) of 2021. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/17/eng@2022-05-19

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