Court of Appeal of Kenya v John Kiarie Waweru & 1 other
The bottom line
#Kenya's Court of Appeal confirmed that election officials who botch an election can be ordered to pay legal costs even when the petition challenging the election fails.
What this practically means
#Executive summary
#Key legal issues
#Interference with the trial judge's discretion on the award of costs
The judge properly exercised his discretion in ordering the Returning Officer and the Electoral Commission to pay the successful Member of Parliament's costs, because his findings showed the Returning Officer's dereliction and incompetence justified the petition even though it failed.
Counsel agreed costs are discretionary. Applying the Mbogo v Shah test, the court examined the judge's findings: the Returning Officer failed to announce tallied results, filled in new Forms 16A and 17A after certifying results, and his conduct fuelled the tallying-centre mayhem. Those findings of dereliction of duty supplied a justifiable basis for the costs order, so the discretion was not wrongly exercised and the appeal had to fail.
Effect of findings of electoral malpractice that do not affect the result
Irregularities attributable to the Commission and Returning Officer were proved to be justified complaints, but did not have a direct effect on the actual results, which is why the petition failed yet costs were still awardable against them.
The High Court had found some complaints against the Electoral Commission and the Returning Officer justified, notably the failure to announce tallied results promptly and the improper completion of Forms 16A and 17A after certification, but held the petitioner failed to prove these rendered the election not a true reflection of the voters' will. The Court of Appeal treated those adverse findings as a legitimate foundation for the costs discretion.
Legal principles established
#- An appellate court will not interfere with a judge's exercise of discretion on costs unless the judge misdirected himself, arrived at a wrong decision as a result, or it is manifest he was clearly wrong causing misjustice.
- Costs remain in the discretion of the court, and a party against whom an election petition is dismissed may nonetheless be condemned to pay costs where the dismissal rests on the petition not affecting the result while the party's conduct was culpable.
Court orders
#- 1.The appeal is dismissed with costs to the respondents
- On appeal from
- High Court of Kenya at Nairobi (Milimani Commercial Courts)
- H.C. Election Petition No. 13 of 2008
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over the High Court's decision on the order for costs in an election petition (Cap 7 election petition regime; specific provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Court of Appeal of Kenya v John Kiarie Waweru & 1 other", Case Analysis (2009). Civil Appeal 219 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/12/eng@2009-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.