In re Council of Governors (Reference 1 of 2014) [2014] KESC 54 (KLR) (8 December 2014) (Ruling)
The bottom line
#Withdrawing a court case does not automatically shield you from paying the other side's costs.
What this practically means
#The Supreme Court ruled that the Council of Governors must pay the legal costs of the Senate and the Commission for the Implementation of the Constitution, even though the Council withdrew its case. The Court found that the Council had abused the court process by filing a similar case in the High Court and not following court directions. The decision confirms that public bodies are not automatically exempt from paying costs when they misuse court procedures.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether costs should be ordered against the applicant or not
Key legal issues
#Whether the Court can order costs upon withdrawal of a matter before it.
The Court has the discretionary power to award costs upon withdrawal of a matter, as confirmed in John O. Ochanda v. Telkom Kenya Limited.
The Court held that a party's liberty to withdraw a matter cannot be taken away, but such withdrawal is subject to an order for costs. The Court's mandate to award costs is founded in Section 21(1) of the Supreme Court Act and Rule 3(5) of the Supreme Court Rules, 2012. The discretion must be exercised judicially, and a party seeking costs must lay a firm basis by giving sufficient reasons.
Whether the applicant's conduct amounted to abuse of court process, justifying an award of costs.
The applicant's conduct, including filing a Reference, failing to comply with court directions, and filing a similar matter in the High Court, amounted to abuse of court process, warranting an order for costs.
The Court reviewed the record and agreed with the Senate's chronological account. The applicant made an application for leave to amend but did not do so, made an oral stay application but did not file a formal application, and then waited until a Preliminary Objection was filed before orally withdrawing the Reference. The Court found this conduct left questions on the real intent of the applicant and amounted to abuse of court process.
Whether a public entity can be ordered to pay costs.
A public entity is not immune from an order for costs; it must expend public resources accountably.
The Court rejected the applicant's argument that as a public entity it should not be ordered to pay costs. The Court stated that accountable utilisation of public funds encompasses use of public funds for causes well founded in law. The Court also noted that whether the applicant is a public entity was debatable but did not fall for determination as the Reference had been withdrawn.
Legal principles established
#- A party can withdraw a Supreme Court case, but the Court can still order them to pay costs.
- Costs generally follow the event: the losing party pays, but the Court has discretion to decide otherwise.
- Public entities must use public funds accountably and cannot claim immunity from costs orders.
- Abuse of court process, such as filing similar cases in different courts, justifies an award of costs against the offending party.
- A party seeking costs must provide sufficient reasons; the Court will not award costs automatically.
Court orders
#- 1.the applicant shall bear the costs of the interested parties in this Reference
- 2.costs of the 1st interested party and the 2nd interested party to be agreed upon or taxed by the Taxing Master of the Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 163(6) of the Constitution
Relief refused
#Applicant's prayer that no costs be awarded against it
The Court found the applicant's conduct amounted to abuse of court process
Costs
the applicant shall bear the costs of the interested parties in this Reference; costs of the 1st interested party and the 2nd interested party to be agreed upon or taxed by the Taxing Master of the Court
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 applicant shall bear the costs of the interested parties in this Reference
costs of the 1st interested party and the 2nd interested party to be agreed upon or taxed by the Taxing Master of the Court.
Consequently, we agree that the applicant's Reference before this Court and his advocate's conduct amounted to abuse of court process.
A public entity should expend public resources accountably. Accountable utilisation of public funds also encompasses use of public funds for causes well founded in law.
It emerges that 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.
Key timeline
#Practical implications
#Costs risk on withdrawal
When advising clients on withdrawing Supreme Court matters, warn that costs may still be awarded if the other side has incurred expenses or if the client's conduct suggests abuse of process. File a formal withdrawal application early and document reasons to minimize costs exposure.
No immunity for public bodies
If you are involved in litigation against a state organ or county government, you can seek costs even if they withdraw their case. The Court rejected the argument that public entities are automatically shielded from costs orders, so push for costs if the other side's conduct is unreasonable.
Withdrawal doesn't erase costs
If you sue someone and later decide to drop the case, you may still have to pay the other party's legal fees, especially if you delayed or filed multiple cases. Think carefully before starting a lawsuit, and consider alternative dispute resolution to avoid costs.
Frequently asked questions
#Can I withdraw a case in Kenya without paying costs?+
Yes, you can withdraw a case, but the court may still order you to pay the other side's costs. In this Supreme Court case, the Council of Governors withdrew its Reference but was ordered to pay costs because its conduct amounted to abuse of court process.
Are government bodies in Kenya immune from paying court costs?+
No. The Supreme Court ruled that public entities like the Council of Governors are not automatically immune from costs orders. They must use public funds accountably, and if they file cases that abuse court process, they can be ordered to pay the other side's legal fees.
What is abuse of court process in Kenya?+
Abuse of court process includes filing similar cases in different courts (forum shopping), failing to follow court directions, or delaying proceedings without good reason. In this case, the Council of Governors filed a Reference in the Supreme Court and a similar matter in the High Court, which the Court found to be an abuse.
How does the 'costs follow the event' rule work in Kenya?+
The rule means the losing party usually pays the winner's costs. But courts have discretion to depart from this rule in special circumstances, such as public interest cases or when a party's conduct is unreasonable. The Supreme Court confirmed this discretion in the Council of Governors case.
Cite this brief
#Cite this brief
Caselaw, "In re Council of Governors (Reference 1 of 2014) [2014] KESC 54 (KLR) (8 December 2014) (Ruling)", Case Analysis (2014). Reference 1 of 2014. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2014/54/eng@2014-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.