Supreme Court declines to award costs against a petitioner seeking to withdraw a petition as bad faith had not been demonstrated on the part of the petitioner

Brief facts

The petitioner filed the instant notice of withdrawal of the petition of appeal in which he sought to withdraw the petition of appeal with no order as to costs. The only dispute for the courts determination was that of costs upon withdrawal of the petition. The petitioner contended that the notice of withdrawal was filed due to the courts decision on July 25, 2022 dismissing the petitioners application with no order as to costs. It was the petitioners argument that; costs followed the event though courts had the ultimate and unfettered discretion with respect to costs; the purpose for an award of costs was to indemnify fully or partially the successful party for the expenses incurred; and that the issues raised were of a constitutional nature and of public interest. 

The 4^th and 5^th respondents prayed for costs upon withdrawal of the petition on grounds that; the matter was not a public interest litigation; the petitioner had abused the judicial process by filing another petition of appeal raising similar issues that had been raised in a prior suit and that they had spent considerable resources in hiring advocates to defend them in the proceedings. 

Issues

1. What was the purpose of issuing orders as to costs? 
2. Whether in the absence of bad faith in public interest litigation each party should bear its costs? 

Held

1. The court had the power under section 21(2) of the Supreme Court Act and rule 3(5) of the Supreme Court Rules to make any ancillary or interlocutory orders including any orders as to costs that it thought fit to award as it deemed necessary for the ends of justice or prevent abuse of the process of the court. Ordinarily, costs followed the event and costs should not be used to punish the losing party but to compensate the successful party for the trouble taken in prosecuting or defending a suit.
2. In public interest litigation which existed to serve the purpose of protecting the rights of the public at large, in a case that raised constitutional issues which were public in nature, in the absence of bad faith being exhibited, each party should bear its costs.
3. In view of the courts ruling delivered on July 25, 2022, the court could not substantially determine the instant petition in the absence of reasons for the impugned judgment of the appellate court in Civil Appeal No. E168 of 2022 which resulted in the petitioner filing Petition No E024 of 2022 before the instant court upon delivery of the reasons for the judgment by the appellate court.
4. The instant case fell within the domain of public interest litigation surrounding the nomination of a person for the general election that was slated for August 9, 2022 and the defending of such proceedings by the respondents was similarly in exercise of public interest. In addition, the withdrawal of the petition of appeal was largely informed by the courts ruling on July 25, 2022. As no bad faith had been demonstrated on the part of the petitioner, the court was not inclined to make any order for costs against him.

Supreme Court allows an application seeking the withdrawal of an appeal and orders each party to bear its costs

Brief facts

The applicant filed the instant notice of motion application for orders that; the court grants leave for the applicant to withdraw the petition of appeal dated June 27, 2022 before the instant court and for costs to be in the cause. It was the applicants contention that having been aggrieved by the Court of Appeals ruling, he lodged both a petition of appeal and an application seeking stay of the impugned ruling to effectively conserve the substratum of the appeal which related to funds under the supplementary budget of Mandera County. The applicant averred that before the court could hear and issue orders, the funds had since been released and utilized by the respondents. Resultantly, proceeding to hear the application and petition of appeal would be a waste of precious and scarce judicial resources. 

The applicant further claimed that since pleadings were never served upon any of the respondents, the latter stood to suffer no prejudice if it was withdrawn with no orders as to costs and that it was in the interest of justice to do so. No party had filed a response to the petition of appeal and the application dated June 27, 2022 seeking conservatory relief save for the 2^nd respondent who filed a notice of preliminary objection. 

Issues

Whether costs could be awarded where a matter was not ripe for hearing and the respondents did not stand to suffer prejudice in the withdrawal of an appeal.

Held

1. None of the parties were opposed to the withdrawal of the petition, save for the prayer for costs by the 1^st to 4^th respondents. In the premises, the prayer to have the petition of appeal withdrawn was allowed. The substratum of the appeal, being of the nature of public interest, was overtaken by events necessitating the withdrawal of the appeal. 
2. The matter was not ripe for hearing despite the 2^nd respondent having filed a notice of preliminary objection which had not been heard or directions given. While applying the principle that costs followed the event, the event to which costs would follow had not materialized and the respondents did not stand to suffer prejudice if the petition of appeal was withdrawn without costs. There was no reason to award costs, the limited court attendances by the respondents, which were in any event of the nature of mentions notwithstanding.