1.The petitioner herein filed an Election Petition dated September 8, 2022 challenging the election results for Bahati Constituency, Nakuru County that were declared on August 11, 2022. The petitioner challenged the results of the election process on grounds of voter intimidation; illegal, irregular and un-procedural assistance of voters that were illiterate and disabled. There were allegations that the 3rd respondent’s officers made false entries resulting to improper tallying. The petitioner also alleged that there was bribery of voters, presiding officers, clerks and the deputy county Commissioner of Bahati sub-county.
2.The petition elicited responses from the parties herein who filed their respective responses. However, before the matter was set down for pre-trial, the petitioner through his counsel, Mr. Gikonyo, filed an application dated October 7, 2022 seeking to withdraw the Election Petition pursuant to Rules 21 (1), (2) & (3) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017. The application was on grounds that the petitioner did not intend to pursue the petition for the good of the constituents of Bahati Constituency so as to allow development of the constituency under the elected member of parliament (1st Respondent).According to the petitioner, he prefers to move on with his life without the rigorous pursuit of an election petition and has therefore withdrawn the petition at this early stage to save on precious judicial time and costs on all parties involved. The application was also filed together with the supporting affidavit sworn by Onesmus Kimani Ngunjiri.
3.The application to withdraw the petition was not by the respondents and the only issue that remains for the court’s determination is costs.
4.The petitioner submitted that the law does not require an election court to adhere to the costs – follow- the event principle. He referred this court to the provisions of Rule 22 (2) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 which provides as follows;(2)The elections court may grant leave to withdraw a petition on such terms as to payment of costs or as the election court may otherwise determine.
5.The Petitioner extensively cited the case of Jasbin Singh Rai & 3 Others -v- Tarloch Singh Rai & 4 Others  eKLR where the Supreme Court held as follows;
6.The petitioner urged the court to find that it has discretion on whether to award costs or not. He argued that some of the factors that this court ought to consider in exercising its discretion on costs include a claim of the public interest, the motivations and conduct of the parties prior to, during and subsequent to and the actual process of litigation. The petitioner submitted that they acted in good faith during and subsequent to filing of the Petition. The petitioner wasted no time and took the earliest opportunity available to inform the court and opposing counsel of his intention to withdraw the Petition. It therefore saved the court and the parties from travelling to Nakuru for the pre-trial conference. The Petitioner submitted that the court should therefore direct the parties to bear their own costs, however in event the petitioner did not persuade the court to find so, it proposed costs at Kshs.150,000/- was reasonable for 2nd and 3rd Respondents.
7.The 1st Respondent through her counsel, Mr. Issa indicated that she will not pursue costs.
8.The 2nd and 3rd respondents represented by M/s Muchemi & Co. Advocates on the other hand filed an affidavit and skeletal submissions dated October 14, 2022 seeking costs of the petition. The 2nd and 3rd Respondents submitted that they are entitled to costs of the petition having substantively responded to both the Petitioner’s petition dated September 8, 2022 and an interlocutory application dated September 26, 2022. In addition, they have also filed and served their interlocutory application dated September 30, 2022. They submitted that they engaged a team of 2 counsels whom together with the witnesses invested a lot of time, labour and resources in preparation of documentation to respond to the petition and in gathering all the necessary evidence. The 2ndand 3rdRespondents further submitted that they have filed the following pleadings with regard to this petition:a.Response to petition dated September 22, 2022b.Affidavit in support of Response sworn by the 2nd Respondent dated September 21, 2022c.Affidavit evidence of John NderituKamunya dated September 22, 2022d.Affidavit evidence of Isaac Waigwa Gatimu dated September 22, 2022e.Replying Affidavit sworn by 2nd Respondent dated October 6, 2022f.Notice of Motion and supporting affidavit dated September 30, 2022
Analysis and Determination
10.As earlier observed in this ruling the only issue that is before the court for consideration is the award of costs. Section 84 of the Elections Act No. 24 of 2011 provides that ‘an election court shall award the costs of and incidental to the petition and such costs shall follow the cause.’
11.It is not in dispute that the petition did not proceed to full trial and was withdrawn before pre-trial conference. The petitioner argues that it promptly informed the court and all the parties involved of its intention to withdraw the suit and therefore did not cause it any inconvenience. The petitioner argues that an Election Court has discretion not to award cost for good reason pursuant to section 27(1)) of the Civil Procedure Act. To buttress his argument, the cited the case of Jasbin Singh Rai & 3 Others (supra) where the court highlighted examples of cases that departed from the costs-follow-the-event principle.
12.In my view, the discretion of the election court unlike that exercised in civil cases is limited considering that the purpose for awarding costs in electoral disputes is to compensate the successful litigant for expenses incurred in prosecuting the case. This was the finding of the Supreme Court in George Mike Wanjohi v Steven Kariuki & 2 others  eKLR where the court held:
14.In this instant case, the petitioner seeks to withdraw the petition. Rule 31 (3) of the Elections (Parliamentary and County Elections) Petition Rules, 2017 provides that the abatement of a petition shall not affect the liability of the petitioner or of any other person to the payment of previously incurred costs. Therefore, where an election petition abates for reason that the petition has been withdrawn or stuck out or for such reasons the petition has not been heard to its conclusion, costs shall be payable in such instances. (See Anastasia Wanjiru Mwangi v Independent Electoral & Boundaries Commission & another  eKLR).
15.I agree with the submissions of the 2nd and 3rd respondent that in so far as the application to withdraw the suit was promptly filed and all parties notified of the petitioner’s intention to withdraw the petition before the pre-trial conference was held, the 2nd and 3rd respondents did incur expenses which they would not have incurred were it not for the election petition. The 2nd and 3rd respondents appointed advocates and gave them instructions, prepared documents in response to the petition and collected evidence intended to challenge the petition. The 2nd and 3rd respondents applied some resources towards defending the suit and in my view; they are therefore entitled to costs.
16.In conclusion , I make the following orders:1.The Petitioner is granted leave to withdraw Election Petition No. E001 of 2022 dated September 8, 2022 filed in Nakuru High Court, which Election Petition is hereby marked as withdrawn.2.The Petitioner shall pay the 2nd and 3rd Respondents the costs of the Election Petition filed herein and the total costs awarded to the 2nd and 3rdRespondents jointly shall not exceed Kshs. 800,000/-.3.The 2nd and 3rd Respondents shall forward their Bill of Costs to the Deputy Registrar of the High Court for taxation subject to the limitation on the total costs to be awarded as ordered hereinabove ( no.2).4.The sum of Kshs. 500,000/- deposited in court by the Petitioner as security for costs shall be applied to the payment of the taxed costs of the 2nd and 3rd Respondent.