Simon Mbugua v Ibrahim Ahmed & 2 others [2014] KECA 618 (KLR)
The bottom line
#Kenya's Court of Appeal upheld most election petition costs against Simon Mbugua but struck down a vague costs order that failed to give legal reasons.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court's order that petition costs be paid jointly and severally by the appellant, the Returning Officer and ECK was made in error
- 2.Whether the order that expenses under Rule 34(b) be borne by the appellant alone was valid and enforceable
- 3.Whether ECK, not being a living person, could have filed a notice of non-contest under Rules 31, 32 and 33 of the Election Petition Rules
- 4.Whether the Court of Appeal should interfere with the election court's discretion on costs
Key legal issues
#Validity of the Rule 34(b) costs order
The order under Rule 34(b) was set aside because it did not address any of the matters listed in Rule 34(a), rendering it inchoate, vague and unenforceable.
Rule 34(a) and (b) are joined by the conjunctive 'and' and must be read together. A court making an order under Rule 34(b) is duty-bound to identify vexatious conduct, unfounded allegations or unfounded objections and to discourage such conduct by throwing the resulting costs on the party responsible. The High Court's order said nothing about those matters, so it was unenforceable. Ground 43 succeeded and the order was set aside.
General costs order against the appellant, Returning Officer and ECK jointly and severally
The general costs order was upheld; costs followed the event, the three respondents were the losing parties, and the election court gave reasons for its discretionary order.
Costs in election petitions are discretionary but must be exercised judicially. Costs follow the event unless the court records reasons to the contrary. The election court made the order against the parties who lost to the petitioner; no error of principle was shown. Reasons were given ex abundanti cautella, noting the numerous applications and ECK's failure to file the Rule 33 notice. The Court of Appeal would not interfere with a discretion exercised on a sound basis.
Whether ECK could file a notice of non-contest under Rules 31, 32 and 33
The submission that only a living person could issue the non-contest notice was rejected; ECK, a body corporate with power to sue and be sued, was properly a respondent and could have used those Rules.
The Rules define 'respondent' to include the returning officer and any person whose conduct is complained of. ECK was established under Section 41(1) of the Constitution, enjoyed independence under Section 41(9), and could sue or be sued in its corporate personality. It was properly enjoined and could have taken advantage of Rules 31, 32 and 33 had it not wished to litigate; having failed to do so, it could not escape liability for costs.
Legal principles established
#- Sub-rules (a) and (b) of Rule 34 are conjunctive and must be read together; an order under Rule 34(b) that does not address the matters in sub-rule (a) — vexatious conduct, unfounded allegations or unfounded objections — is inchoate, vague and unenforceable.
- An appellate court will not interfere with an election court's discretion on costs where cogent reasons are given, absent misdirection or clear error.
- ECK had the power to sue or be sued in its corporate personality and was properly enjoined as a respondent in an election petition; it could have filed a notice of non-contest under Rules 31, 32 and 33 if it did not wish to participate.
Court orders
#- 1.The appeal is dismissed save to the extent that ground 43 succeeds
- 2.The order on costs under Rule 34(b) is set aside
- 3.Each party shall bear its own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Election Petition No. 35 of 2008
- Jurisdiction invoked
- Appeal from a ruling and order of the High Court sitting as an election court under the National Assembly and Presidential Elections Act, Cap 7 and the National Assembly Elections (Election Petition) Rules, 1993
Relief refused
#Setting aside the general costs order requiring the appellant to pay the petitioner's costs jointly and severally with the other respondents
Costs followed the event; the parties ordered to pay were the losing parties and there was no error in principle in the exercise of discretion
Costs
Each party shall bear its own costs of the appeal; the High Court's general order for costs in favour of the petitioner jointly and severally against the 1st, 2nd and 3rd respondents is upheld, but the order under Rule 34(b) that expenses be borne by the appellant alone is set aside.
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.
In this case, the order made for costs under Rule 34(b) says nothing about any of the matters listed under sub rule (a) and to that extent the order is not only inchoate but vague and unenforceable. We would allow the appeal on ground 43 and set aside the order on costs, which we now do.
So that, for as long as the election court gives cogent reasons for the exercise of its discretion under the statute and rules , this court will have no reason to interfere.
It is also a general principle on costs that they shall follow the event, unless, for reasons to be recorded, the court decides otherwise.
As the appellant has been partially successful, we order that each party shall bear its own costs of the appeal. Orders accordingly.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simon Mbugua v Ibrahim Ahmed & 2 others [2014] KECA 618 (KLR)", Case Analysis (2014). Civil Appeal No. 40 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/618/eng@2014-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.