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ELCOtherNot stated in the judgment as provided· [2024] KEELC 3424 (KLR)

Petition withdrawn (Petitioner v. 1st-7th Respondents)

High Court of Kenya (as constituted for the Petition; bench rank 'Judge')
23 April 2024
MMM.D. Mwangi
723 words in judgment
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The bottom line

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When a Kenyan petition is withdrawn early—before pleadings close—courts often rule that no party gets costs, leaving everyone to pay their own legal bills.

What this practically means

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Executive summary

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This is a first-instance ruling on the consequences of a voluntary withdrawal of a constitutional petition. On 21st February 2024 the Petitioner's advocate notified the Court of a Notice of Withdrawal dated 14th February 2024 seeking to withdraw the Petition in its entirety, and asked that it be marked withdrawn with no orders as to costs. The 1st, 2nd and 3rd Respondents and the 6th Respondent did not oppose withdrawal but sought costs; the 4th, 5th and 7th Respondents did not object to withdrawal without costs. The Court allowed the withdrawal and invited submissions on costs only; only the 1st, 2nd and 3rd Respondents filed. They claimed instruction fees, relying on Republic v. Municipal Council of Busia. The Court considered Section 27 of the Civil Procedure Act, the DMG v EWG factors (subject of the suit, circumstances of institution, events of termination, stage of termination, and the parties' relationship), and the Supreme Court's decision in Tasbir Singh Rai on departing from the general rule that costs follow the event. Noting that the Petition was withdrawn at its preliminary stages, before directions and before pleadings closed, the Judge held it unfit and unjust to award costs to any Respondent. The Petition was marked as withdrawn, with each party bearing its own costs. Ruling delivered virtually at Nairobi on 23rd April 2024 by M.D. Mwangi, Judge.

Key legal issues

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01

Whether costs should follow a withdrawn petition

Holding

No costs were awarded because the Petition was withdrawn at its preliminary stages before pleadings closed

Reasoning

The court applied Section 27 of the Civil Procedure Act and the DMG v EWG factors. Although costs ordinarily follow the event, the stage of termination is a key consideration. Because the Petition was withdrawn before directions on hearing and before pleadings closed, the court found it unfit and unjust to award costs to any Respondent and directed each party to bear its own costs.

p. 3

Legal principles established

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  • Costs of and incidental to suits are in the discretion of the Court and follow the event unless the Court for good reasons otherwise directs
  • The stage at which proceedings are terminated is a key consideration in deciding whether to award costs on withdrawal

Court orders

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  1. 1.The withdrawal of the Petition is allowed
  2. 2.The Petition is marked as withdrawn with no orders as to costs
  3. 3.Each party bears its own costs
Jurisdiction invoked
Not expressly stated; costs jurisdiction under Section 27 of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Petition withdrawn (Petitioner v. 1st-7th Respondents)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3424/eng@2024-04-23

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