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ELRCPartially AllowedPetition dated 31st January, 2022

Omao v Gusii Water and Sanitation Co. Ltd & 9 others; Wachira (Interested Party) (Petition E001 of 2022) [2024] KEELRC 2258 (KLR)

Employment and Labour Relations Court
23 September 2024
CBC. N. Baari
1,403 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a water company governance petition as moot, ruling that a dispute over legal costs cannot revive an already-settled case.

What this practically means

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Executive summary

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The Interested Party, Lucy Wahito Wachira, brought a motion dated 6th May 2024 under Sections 1A, 1B and 3A of the Civil Procedure Act seeking dismissal of the Petitioner's petition or that it be marked as settled, on grounds that the orders sought had been overtaken by events: she had been substantively appointed Managing Director of the 1st Respondent, Mr. Edward Begi was no longer interim Company Secretary, and the company was being run in line with Article 10 values. The Petitioner opposed, arguing the petition was filed in the public interest and had to be determined fully. The 4th and 5th Respondents also opposed, contending not all issues had been resolved and that public interest litigation cannot be withdrawn at a party's whim. The court noted that on 27th June 2023 parties had indicated the petition was overtaken by events, and a draft consent of 15th November 2023 to mark the petition withdrawn failed only over the allocation of costs. Holding the petition moot, Justice Baari reasoned that disagreement on costs could not breathe life into it, applying the Supreme Court's decision in Okoiti that no party should benefit from costs in public interest litigation. The court allowed the motion, dismissed the petition dated 31st January 2022 with no orders on costs, and made no award of costs on the application.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the motion is merited, and if so, whether the petition herein should be dismissed

Key legal issues

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01

Whether the Interested Party's motion to dismiss/mark the petition as settled should be allowed

Holding

Allowed; the petition had become moot

Reasoning

The Interested Party had been substantively appointed Managing Director, resolving the management wrangles. Parties had previously agreed the petition was settled, subject only to costs. A costs dispute cannot revive a moot petition; continuation would be an abuse of process.

p. 4
02

Whether costs should be awarded in a public interest petition

Holding

No party should benefit from an award of costs in public interest litigation

Reasoning

Applying the Supreme Court's holding in Okoiti & 2 Others v. Attorney General & 14 Others, the court declined to award costs either on the petition or the application, directing any party with a prior costs award to pursue it in the file where it was made.

p. 4

Legal principles established

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  • In public interest litigation, no party should benefit from an award of costs (as per the Supreme Court in Okoiti)
  • A petition rendered moot is not revived by disagreement between parties on costs

Court orders

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  1. 1.The Interested Party's motion dated 6th May, 2024 is allowed
  2. 2.The Petitioner's petition dated 31st January, 2022 is dismissed
  3. 3.No orders on costs in respect of the petition
  4. 4.No award of costs in respect of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

CB
majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act

Relief refused

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Costs of the application

The court made no award of costs on the application, consistent with the rule against costs in public interest litigation

p. 4

Costs

Dismissed the petition with no orders on costs; no award of costs in respect of the application either.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I proceed to allow the Interested Party’s motion and dismiss the Petitioner’s petition dated 31st January, 2022 with no orders on costs.
p. 4Disposition
I equally make no award of costs in respect of this application.
p. 4Costs of the application
Convinced that the petition herein is moot, the fact that parties disagree on who should have costs, does not in my view breath live into this petition.
p. 4Mootness
held that in public interest litigation, no party should benefit from an award of costs.
p. 4Costs in public interest litigation

Issues in the judgment

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minor

Typographical errors in the judgment text

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, "Omao v Gusii Water and Sanitation Co. Ltd & 9 others; Wachira (Interested Party) (Petition E001 of 2022) [2024] KEELRC 2258 (KLR)", Case Analysis (2024). Petition dated 31st January, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2258/eng@2024-09-23

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