Nabwana (Suing as the Personal Representative of the Estate of Pascal Nabwana Wakoli) v County Government of Bungoma & 3 others (Constitutional Petition E007 of 2022) [2025] KEELC 4230 (KLR)
The bottom line
#A Kenyan court let a landowner withdraw a constitutional petition without paying the other side's costs, because the respondents themselves delayed the case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether costs should follow the event upon the petitioner's withdrawal of the petition, or each party should bear their own costs
Key legal issues
#Whether the respondents were entitled to costs notwithstanding the withdrawal of the petition
Each party to bear their own costs, given respondents' own inaction caused delay and access-to-justice considerations under Article 48 and Rule 26(2) of the Mutunga Rules
The court held costs are discretionary and the party seeking them must give cogent reasons. The 2nd-4th respondents and the interested party entered appearance but never filed responses, delaying the petition, and filed no submissions supporting their costs claim. To give effect to Article 48 and Rule 26(2), each party was to bear their own costs.
Legal principles established
#- Award of costs is a judicial discretion; a party seeking costs must lay a cogent basis, and in withdrawn constitutional petitions courts may order each party to bear their own costs to give effect to access to justice under Article 48
Court orders
#- 1.Leave granted for withdrawal of the petition
- 2.Each party to bear their own costs of the withdrawn petition
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 165(2) Constitution / Mutunga Rules (petitions under Articles 40 and 48)
Relief refused
#All substantive relief sought in the petition (declarations of ownership and constitutional violation, mesne profits, eviction/injunction, boundary reinstatement)
The petitioner withdrew the entire petition at pre-trial conference before any hearing on the merits
Costs
Each party shall bear their own costs of the petition
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 view of the foregoing reasons, I find that each party shall bear their own costs of this petition which has since been withdrawn by consent of the parties.
Although there is eminent good sense in the basic rule of costs – that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion.
A party who moves the Court to make such an order for costs has an obligation to lay cogent basis by giving suficient reasons why costs should be awarded to him.
Issues in the judgment
#Judgment inconsistently refers to itself as a 'Ruling' despite being styled a judgment on withdrawal of petition
Petitioner's pleaded order (a) and land parcel numbers are incomplete/truncated in the record (e.g. 'Kimilili/Kimilili/' without numbers)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nabwana (Suing as the Personal Representative of the Estate of Pascal Nabwana Wakoli) v County Government of Bungoma & 3 others (Constitutional Petition E007 of 2022) [2025] KEELC 4230 (KLR)", Case Analysis (2025). Petition dated 07/11/2022 (Bungoma ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4230/eng@2025-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.