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MNK V POM; Initiative For Strategic Litigation In Africa (ISLA) (Amicus Curiae) (Petition 9 Of 2021) [2023] KESC 2 (KLR) (Family) (27 January 2023) (Judgment)
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| Case Number: Petition 9 of 2021 |
Date Delivered: 27 Jan 2023 |
Judge: Isaac Lenaola, William Ouko, Philomena Mbete Mwilu, Smokin Charles Wanjala, Njoki Susanna Ndungu
Court: Supreme Court of Kenya
Parties: MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae)
Advocates:
Citation: MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) (Petition 9 of 2021) [2023] KESC 2 (KLR) (Family) (27 January 2023) (Judgment)
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Wamwere & 5 Others V Attorney General (Petition 26, 34 & 35 Of [2019] (Consolidated)) [2023] KESC 3 (KLR) (27 January 2023) (Judgment)
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| Case Number: Petition 26, 34 & 35 of 2019 (Consolidated) |
Date Delivered: 27 Jan 2023 |
Judge: Martha Karambu Koome, William Ouko, Philomena Mbete Mwilu, Smokin Charles Wanjala, Njoki Susanna Ndungu
Court: Supreme Court of Kenya
Parties: Wamwere & 5 others v Attorney General
Advocates:
Citation: Wamwere & 5 others v Attorney General (Petition 26, 34 & 35 of 2019 (Consolidated)) [2023] KESC 3 (KLR) (27 January 2023) (Judgment)
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Kampala International University V Housing Finance Company Limited (Petition (Application) 34 (E035) Of 2022) [2023] KESC 5 (KLR) (27 January 2023) (Ruling)
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| Case Number: Petition (Application) 34 (E035) of 2022 |
Date Delivered: 27 Jan 2023 |
Judge: Isaac Lenaola, Mohammed Khadhar Ibrahim, Philomena Mbete Mwilu, Smokin Charles Wanjala, Njoki Susanna Ndungu
Court: Supreme Court of Kenya
Parties: Kampala International University v Housing Finance Company Limited
Advocates:
Citation: Kampala International University v Housing Finance Company Limited (Petition (Application) 34 (E035) of 2022) [2023] KESC 5 (KLR) (27 January 2023) (Ruling)
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Saisi & 7 Others V Director Of Public Prosecutions & 2 Others (Petition 39 & 40 Of [2019] (Consolidated)) [2023] KESC 6 (KLR) (27 January 2023) (Judgment)
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| Case Number: Petition 39 & 40 of 2019 (Consolidated) |
Date Delivered: 27 Jan 2023 |
Judge: Isaac Lenaola, Mohammed Khadhar Ibrahim, William Ouko, Smokin Charles Wanjala, Njoki Susanna Ndungu
Court: Supreme Court of Kenya
Parties: Saisi & 7 others v Director of Public Prosecutions & 2 others
Advocates:
Citation: Saisi & 7 others v Director of Public Prosecutions & 2 others (Petition 39 & 40 of 2019 (Consolidated)) [2023] KESC 6 (KLR) (27 January 2023) (Judgment)
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Senate Of Kenya & 3 Others V Speaker Of The National Assembly & 10 Others (Application 7 (E013) Of 2022) [2023] KESC 1 (KLR) (18 January 2023) (Ruling)
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| Case Number: Application 7 (E013) of 2022 |
Date Delivered: 18 Jan 2023 |
Judge: Isaac Lenaola, William Ouko, Philomena Mbete Mwilu, Smokin Charles Wanjala, Njoki Susanna Ndungu
Court: Supreme Court of Kenya
Parties: Senate of Kenya & 3 others v Speaker of the National Assembly & 10 others
Advocates:
Citation: Senate of Kenya & 3 others v Speaker of the National Assembly & 10 others (Application 7 (E013) of 2022) [2023] KESC 1 (KLR) (18 January 2023) (Ruling)
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Aluochier V Independent Electoral And Boundaries Commission & 17 Others (Petition 20 (E023) Of 2022) [2022] KESC 77 (KLR) (Civ) (20 December 2022) (Judgment)
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| Case Number: Petition 20 (E023) of 2022 |
Date Delivered: 20 Dec 2022 |
Judge: Isaac Lenaola, William Ouko, Philomena Mbete Mwilu, Smokin Charles Wanjala, Njoki Susanna Ndungu
Court: Supreme Court of Kenya
Parties: Aluochier v Independent Electoral and Boundaries Commission & 17 others
Advocates:
Citation: Aluochier v Independent Electoral and Boundaries Commission & 17 others (Petition 20 (E023) of 2022) [2022] KESC 77 (KLR) (Civ) (20 December 2022) (Judgment)
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Sonko V County Assembly Of Nairobi City & 10 Others (Petition 11 (E008) Of 2022) [2022] KESC 76 (KLR) (5 December 2022) (Reasons)
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| Case Number: Petition 11 (E008) of 2022 |
Date Delivered: 05 Dec 2022 |
Judge: Martha Karambu Koome, Isaac Lenaola, Mohammed Khadhar Ibrahim, William Ouko, Philomena Mbete Mwilu, Smokin Charles Wanjala, Njoki Susanna Ndungu
Court: Supreme Court of Kenya
Parties: Sonko v County Assembly of Nairobi City & 10 others
Advocates:
Citation: Sonko v County Assembly of Nairobi City & 10 others (Petition 11 (E008) of 2022) [2022] KESC 76 (KLR) (5 December 2022) (Reasons)
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Trattoria Limited V Maina & 3 Others (Petition (Application) E029 Of 2022) [2022] KESC 75 (KLR) (Civ) (25 November 2022) (Ruling)
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| 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) (Civ) (25 November 2022) (Ruling)
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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)
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| 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)
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Abote V Kawaka & 4 Others (Petition 16 (E019) Of 2022) [2022] KESC 69 (KLR) (Civ) (4 November 2022) (Ruling)
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| 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 4th and 5th 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.
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