Ledama Ole Kina v Samuel Kuntai Tunai & 9 others
The bottom line
#Supreme Court cannot hear an appeal on costs alone after constitutional grounds are withdrawn.
What this practically means
#This case started as an election petition for Narok County. The loser appealed all the way to the Supreme Court, but at the hearing he dropped his constitutional arguments and only challenged the costs order. The Supreme Court said it cannot hear that because its job is to interpret the Constitution, not to decide who pays legal fees. So the appeal was dismissed and the original costs order stood.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether this Court has jurisdiction to entertain this petition
- 2.whether the superior Courts erred in their decisions on costs
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) to entertain an appeal on the sole issue of costs after the withdrawal of all other grounds of appeal.
The Supreme Court lacks jurisdiction to consider an appeal on the sole issue of costs where the grounds that originally engaged constitutional interpretation or application have been withdrawn, because the issue of costs alone does not involve the interpretation or application of the Constitution.
The Court held that the grounds of appeal that were abandoned had brought the case within Article 163(4)(a), but the single issue of costs, standing alone, falls outside the remit of the Supreme Court. The Court reasoned that the appeal, as conducted on the issue of costs alone, lacked the foundation of issues concerning the electoral process itself. The Court relied on the principle from Peter Oduor Ngoge v. Francis Ole Kaparo that only weighty issues involving constitutional interpretation or application fall to the Supreme Court, and from Lawrence Nduttu v. Kenya Breweries Ltd that the appeal must originate from a case where issues revolved around constitutional interpretation or application.
Whether the Court of Appeal erred in its decision on costs by not imposing the burden on the respondents who admitted to election irregularities.
The Court of Appeal did not err in its decision on costs because the petitioner failed to discharge the burden of proving that the successful party (the respondents) was guilty of conduct that induced the filing of the petition, and the award of costs was a proper exercise of judicial discretion.
The Court found that since costs follow the cause, the onus was on the petitioner to show that the successful party was guilty of conduct which induced the filing of the action. The petitioner did not discharge this burden. The Court also noted that the High Court had properly exercised its discretion on costs, and the Court of Appeal had not erred in principle by interfering with that discretion. The Court cited the principle from Seif Mohammed v. Yinus Omar that an appellate court should not interfere with a trial court's discretion on costs unless it was exercised injudiciously or on wrong principles.
Legal principles established
#- An appeal under Article 163(4)(a) must genuinely involve constitutional interpretation, not just a mention in pleadings.
- A court's decision on costs is discretionary and an appellate court will not interfere unless that discretion was used wrongly or injudiciously.
- The party asking for costs to be denied to the winner must prove the winner's conduct caused the lawsuit.
- The Supreme Court lacks jurisdiction to hear an appeal on costs alone after all constitutional grounds are withdrawn.
Court orders
#- 1.This Court does not have jurisdiction to consider whether the Court of Appeal properly exercised its discretion, in making the determination on costs.
- 2.For the avoidance of doubt, the Orders of the Court of Appeal on costs remain undisturbed.
- 3.The appeal is dismissed.
- 4.The costs of this appeal shall be borne by the petitioner.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution of Kenya, 2010
Relief refused
#Variation of the Court of Appeal's order on costs to direct the 3rd-to-10th respondents to bear the costs of litigation
The single issue of costs, standing all by itself, falls outside the remit of this Court.
Costs
The costs of this appeal shall be borne by the petitioner.
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.
the single issue of costs, standing all by itself, falls outside the remit of this Court. Consequently, the appeal fails.
This Court does not have jurisdiction to consider whether the Court of Appeal properly exercised its discretion, in making the determination on costs.
For the avoidance of doubt, the Orders of the Court of Appeal on costs remain undisturbed.
The appeal is dismissed.
The costs of this appeal shall be borne by the petitioner.
the appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution.
when a trial Court has exercised its discretion on costs, an appellate Court ought not to interfere, unless that discretion was exercised injudiciously, or on wrong principles.
the onus of proof that the successful party ought to be deprived of costs, lies on the party making that claim.
Key timeline
#Practical implications
#Plan appeal grounds carefully
When appealing to the Supreme Court, ensure the grounds you actually argue involve constitutional interpretation. Withdrawing those grounds mid-hearing strips the Court of jurisdiction over the remaining issues. Draft your notice of appeal to preserve constitutional arguments if you want Supreme Court review.
Costs awards are hard to reverse
If you win a case, you are generally entitled to costs unless the loser proves you induced the litigation. To challenge a costs award on appeal, you must show the trial court acted injudiciously or on wrong principles. This is a high bar, so focus on winning the main case rather than hoping to overturn costs later.
Election losers pay winner's costs
If you lose an election petition, you will likely have to pay the winner's legal costs. To avoid this, you must prove the winner did something that caused you to file the petition. Simply pointing out election irregularities is not enough; you need evidence of bad conduct by the winner that induced your lawsuit.
Frequently asked questions
#Can I appeal to the Supreme Court of Kenya on costs alone?+
No, if the original constitutional grounds are withdrawn. The Supreme Court only hears appeals involving interpretation or application of the Constitution. A standalone costs issue does not qualify, so the Court will dismiss the appeal.
What does 'costs follow the cause' mean in Kenya?+
It means the losing party pays the winning party's legal costs. However, a court can deny costs if the winner acted improperly and induced the lawsuit. The burden is on the loser to prove that misconduct.
How do I challenge a costs award in Kenya?+
You must show that the trial court exercised its discretion injudiciously or on wrong principles. An appellate court will not interfere just because it would have decided differently. This is a difficult standard to meet.
What is Article 163(4)(a) of the Kenyan Constitution?+
It gives the Supreme Court jurisdiction to hear appeals from the Court of Appeal if the case involves the interpretation or application of the Constitution. Mere allegations are not enough; the appeal must actually revolve around constitutional issues.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Sammy Ndung’u Waity v Independent Electoral & Boundaries Commission & 3 others[2019] KESC 54 (KLR)8 Feb 2019
Cite this brief
#Cite this brief
Caselaw, "Ledama Ole Kina v Samuel Kuntai Tunai & 9 others", Case Analysis (2015). Petition 16 of 2014. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2015/27/eng@2015-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.