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ELRCOtherPetition (number not stated in judgment)· [2020] KEELRC 394 (KLR)

Kiama Stephen Gitahi v Cabinet Secretary, Ministry of Education & another;Public Service Commission & 2 others (Interested Parties) [2020] KEELRC 394 (KLR)

Employment and Labour Relations Court
9 October 2020
MOMaureen Onyango
1,553 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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When Kenyan parties settle a case by consent, no one 'wins', so the court will usually order each side to pay its own legal costs.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered by Maureen Onyango J on 9th October 2020, resolved the sole surviving issue in a petition that had been compromised by a consent order dated 25th February 2020 and adopted by the Court on 27th February 2020, under which the petition was marked as settled with each party bearing its own costs. The University of Nairobi, the 2nd Interested Party, resisted the consent on the ground that it was not consulted and that the suit was unnecessary, insisting that the Attorney General (1st Respondent) pay its costs. The issue was disposed of by written submissions. The Respondents submitted that costs follow the event and are discretionary under Section 27 of the Civil Procedure Act; that a consent settlement produces no successful litigant; that costs must not be punitive; that the Attorney General acted in good faith and in the public interest in settling; and that encouraging amicable resolution accords with Article 159(2)(c) of the Constitution. The 2nd Interested Party failed to file submissions despite leave granted on three occasions. The Court held that since both the 2nd Interested Party and the Attorney General are government institutions, and the 2nd Interested Party had not justified a departure from the consent, there would be no order for costs, each party bearing its own costs. The judgment was delivered virtually under the COVID-19 directives, with reliance on Articles 159(2)(d) and 48 of the Constitution and Section 1B of the Civil Procedure Act.

Key legal issues

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01

Award of costs following a consent settlement

Holding

The court declined to award the 2nd Interested Party its costs against the 1st Respondent, holding that the consent was an amicable settlement producing no successful litigant, and that both the 2nd Interested Party and the 1st Respondent are government institutions

Reasoning

The petition was compromised by a consent order adopted on 27th February 2020 providing that each party bear its own costs. Costs follow the event and are compensatory, not penal; no liability was found against the 1st Respondent, whose conduct in settling was in good faith and in the public interest. The 2nd Interested Party failed to file submissions despite repeated leave, and both it and the 1st Respondent are government institutions, making an award inappropriate.

p. 3

Legal principles established

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  • Where a suit is settled by consent there is no successful litigant and the default position is that each party bears its own costs

Court orders

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  1. 1.There shall be no order for costs in this petition; each party is to bear its own costs
Jurisdiction invoked
Original petition jurisdiction of the Employment and Labour Relations Court; costs disposal governed by Section 27 of the Civil Procedure Act, Cap 21

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, "Kiama Stephen Gitahi v Cabinet Secretary, Ministry of Education & another;Public Service Commission & 2 others (Interested Parties) [2020] KEELRC 394 (KLR)", Case Analysis (2020). Petition (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/394/eng@2020-10-09

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