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Trattoria Limited V Maina & 3 Others (Petition (Application) E029 Of 2022) [2022] KESC 75 (KLR) (25 November 2022) (Ruling)
Case Number: Petition (Application) E029 of 2022	Date Delivered: 25 Nov 2022

Judge: Isaac Lenaola, William Ouko, Philomena Mbete Mwilu, Smokin Charles Wanjala, Njoki Susanna Ndungu

Court: Supreme Court of Kenya

Parties: Trattoria Limited v Maina & 3 others

Advocates:

Citation: Trattoria Limited v Maina & 3 others (Petition (Application) E029 of 2022) [2022] KESC 75 (KLR) (25 November 2022) (Ruling)

Kenya Railways Corporation & 2 Others V Okoiti & 3 Others (Petition (Application) 13 (E019) Of [2020] & Petition 18 Of [2020] (Consolidated)) [2022] KESC 68 (KLR) (4 November 2022) (Ruling)
Case Number: Petition (Application) 13 (E019) of 2020 & Petition 18 of 2020 (Consolidated)	Date Delivered: 04 Nov 2022

Judge: Mohammed Khadhar Ibrahim, William Ouko, Philomena Mbete Mwilu, Smokin Charles Wanjala, Njoki Susanna Ndungu

Court: Supreme Court of Kenya

Parties: Kenya Railways Corporation & 2 others v Okoiti & 3 others

Advocates:

Citation: Kenya Railways Corporation & 2 others v Okoiti & 3 others (Petition (Application) 13 (E019) of 2020 & Petition 18 of 2020 (Consolidated)) [2022] KESC 68 (KLR) (4 November 2022) (Ruling)

Abote V Kawaka & 4 Others (Petition 16 (E019) Of 2022) [2022] KESC 69 (KLR) (Civ) (4 November 2022) (Ruling)
Case Number: Petition 16 (E019) of 2022	Date Delivered: 04 Nov 2022

Judge: Isaac Lenaola, William Ouko, Philomena Mbete Mwilu, Smokin Charles Wanjala, Njoki Susanna Ndungu

Court: Supreme Court of Kenya

Parties: Abote v Kawaka & 4 others

Advocates:

Citation: Abote v Kawaka & 4 others (Petition 16 (E019) of 2022) [2022] KESC 69 (KLR) (Civ) (4 November 2022) (Ruling)

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

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

Held

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.
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.
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.
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.

Abote V Kawaka & 4 Others (Petition 21 (E024) Of 2022) [2022] KESC 70 (KLR) (4 November 2022) (Ruling)
Case Number: Petition 21 (E024) of 2022	Date Delivered: 04 Nov 2022

Judge: Isaac Lenaola, William Ouko, Philomena Mbete Mwilu, Smokin Charles Wanjala, Njoki Susanna Ndungu

Court: Supreme Court of Kenya

Parties: Abote v Kawaka & 4 others

Advocates:

Citation: Abote v Kawaka & 4 others (Petition 21 (E024) of 2022) [2022] KESC 70 (KLR) (4 November 2022) (Ruling)

Abdirahman V Mandera County Government & 5 Others (Petition 14 (E016) Of 2022) [2022] KESC 71 (KLR) (4 November 2022) (Ruling)
Case Number: Petition 14 (E016) of 2022	Date Delivered: 04 Nov 2022

Judge: Isaac Lenaola, William Ouko, Philomena Mbete Mwilu, Smokin Charles Wanjala, Njoki Susanna Ndungu

Court: Supreme Court of Kenya

Parties: Abdirahman v Mandera County Government & 5 others

Advocates:

Citation: Abdirahman v Mandera County Government & 5 others (Petition 14 (E016) of 2022) [2022] KESC 71 (KLR) (4 November 2022) (Ruling)

Member Of Parliament For Mbalambala Constituency V Abdi & 7 Others (Petition (Application) 21 (E023) Of 2020) [2022] KESC 73 (KLR) (4 November 2022) (Ruling)
Case Number: Petition (Application) 21 (E023) of 2020	Date Delivered: 04 Nov 2022

Judge: Isaac Lenaola

Court: Supreme Court of Kenya

Parties: Member of Parliament for Mbalambala Constituency v Abdi & 7 others

Advocates:

Citation: Member of Parliament for Mbalambala Constituency v Abdi & 7 others (Petition (Application) 21 (E023) of 2020) [2022] KESC 73 (KLR) (4 November 2022) (Ruling)

Muthuuri & 4 Others V Attorney General & 2 Others (Petition (Application) 15 (E022) Of 2021) [2022] KESC 74 (KLR) (4 November 2022) (Ruling)
Case Number: Petition (Application) 15 (E022) of 2021	Date Delivered: 04 Nov 2022

Judge: Martha Karambu Koome, Isaac Lenaola, Mohammed Khadhar Ibrahim, William Ouko, Philomena Mbete Mwilu

Court: Supreme Court of Kenya

Parties: Muthuuri & 4 others v Attorney General & 2 others

Advocates:

Citation: Muthuuri & 4 others v Attorney General & 2 others (Petition (Application) 15 (E022) of 2021) [2022] KESC 74 (KLR) (4 November 2022) (Ruling)

Mombasa Bricks & Tiles Ltd & 5 Others V Shah & 7 Others (Application 3 (E008) Of 2022) [2022] KESC 72 (KLR) (4 November 2022) (Ruling)
Case Number: Application 3 (E008) of 2022	Date Delivered: 04 Nov 2022

Judge: Isaac Lenaola, William Ouko, Philomena Mbete Mwilu

Court: Supreme Court of Kenya

Parties: Mombasa Bricks & Tiles Ltd & 5 others v Shah & 7 others

Advocates:

Citation: Mombasa Bricks & Tiles Ltd & 5 others v Shah & 7 others (Application 3 (E008) of 2022) [2022] KESC 72 (KLR) (4 November 2022) (Ruling)

Janmohammed (Suing As The Executrix Of The Estate Of The Late H.E Daniel Toroitich Arap Moi) V Raiply Wood (K) Limited & 5 Others (Application 8 (E014) Of 2022) [2022] KESC 67 (KLR) (28 October 2022) (Ruling)
Case Number: Application 8 (E014) of 2022	Date Delivered: 28 Oct 2022

Judge: Isaac Lenaola, Mohammed Khadhar Ibrahim, William Ouko, Philomena Mbete Mwilu, Smokin Charles Wanjala

Court: Supreme Court of Kenya

Parties: Janmohammed (Suing as the Executrix of the Estate of the Late H.E Daniel Toroitich Arap Moi) v Raiply Wood (K) Limited & 5 others

Advocates:

Citation: Janmohammed (Suing as the Executrix of the Estate of the Late H.E Daniel Toroitich Arap Moi) v Raiply Wood (K) Limited & 5 others (Application 8 (E014) of 2022) [2022] KESC 67 (KLR) (28 October 2022) (Ruling)

Parliamentary Service Commission & 4 Others V Salaries And Remuneration Commission & 7 Others (Petition 1 (E026/2021) Of 2022) [2022] KESC 65 (KLR) (Civ) (28 October 2022) (Ruling)
Case Number: Petition 1 (E026/2021) of 2022	Date Delivered: 28 Oct 2022

Judge: Isaac Lenaola, Mohammed Khadhar Ibrahim, William Ouko, Philomena Mbete Mwilu, Njoki Susanna Ndungu

Court: Supreme Court of Kenya

Parties: Parliamentary Service Commission & 4 others v Salaries and Remuneration Commission & 7 others

Advocates:

Citation: Parliamentary Service Commission & 4 others v Salaries and Remuneration Commission & 7 others (Petition 1 (E026/2021) of 2022) [2022] KESC 65 (KLR) (Civ) (28 October 2022) (Ruling)

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Trattoria Limited V Maina & 3 Others (Petition (Application) E029 Of 2022) [2022] KESC 75 (KLR) (25 November 2022) (Ruling)

Kenya Railways Corporation & 2 Others V Okoiti & 3 Others (Petition (Application) 13 (E019) Of [2020] & Petition 18 Of [2020] (Consolidated)) [2022] KESC 68 (KLR) (4 November 2022) (Ruling)

Abote V Kawaka & 4 Others (Petition 16 (E019) Of 2022) [2022] KESC 69 (KLR) (Civ) (4 November 2022) (Ruling)

Abote V Kawaka & 4 Others (Petition 21 (E024) Of 2022) [2022] KESC 70 (KLR) (4 November 2022) (Ruling)

Abdirahman V Mandera County Government & 5 Others (Petition 14 (E016) Of 2022) [2022] KESC 71 (KLR) (4 November 2022) (Ruling)

Member Of Parliament For Mbalambala Constituency V Abdi & 7 Others (Petition (Application) 21 (E023) Of 2020) [2022] KESC 73 (KLR) (4 November 2022) (Ruling)

Muthuuri & 4 Others V Attorney General & 2 Others (Petition (Application) 15 (E022) Of 2021) [2022] KESC 74 (KLR) (4 November 2022) (Ruling)

Mombasa Bricks & Tiles Ltd & 5 Others V Shah & 7 Others (Application 3 (E008) Of 2022) [2022] KESC 72 (KLR) (4 November 2022) (Ruling)

Janmohammed (Suing As The Executrix Of The Estate Of The Late H.E Daniel Toroitich Arap Moi) V Raiply Wood (K) Limited & 5 Others (Application 8 (E014) Of 2022) [2022] KESC 67 (KLR) (28 October 2022) (Ruling)

Parliamentary Service Commission & 4 Others V Salaries And Remuneration Commission & 7 Others (Petition 1 (E026/2021) Of 2022) [2022] KESC 65 (KLR) (Civ) (28 October 2022) (Ruling)

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