Akaran v Chief Magistrate’S Court, Mombasa; Mbele & 2 others (Interested Parties) (Judicial Review E026 of 2022)  KEHC 418 (KLR) (30 January 2023) (Ruling)
Neutral citation:  KEHC 418 (KLR)
Republic of Kenya
Judicial Review E026 of 2022
OA Sewe, J
January 30, 2023
Etore John Akaran
Chief Magistrate’S Court, Mombasa
Patrick Mwamvula Mbele
Independent Electoral and Boundaries Commission
(1)The applicant, Etore John Akaran, filed his Chamber Summons dated November 14, 2022 under a Certificate of Urgency seeking leave to commence judicial review proceedings for orders of Certiorari and Mandamus in connection with Chief Magistrate’s Election Petition No. E002 of 2022: Etore John Akaran v Patric Mwafula Mbelle & others. The applicant’s complaint was that the respondent had declined his request for copies of the proceedings and ruling delivered on October 18, 2022 and November 4, 2022.
(2)Upon leave being granted on November 14, 2022, the applicant filed his substantive application on November 16, 2022. The substantive application was ultimately overtaken by events, after the applicant was supplied with copies of the proceedings and ruling. Mr. Yose for the applicant nevertheless asked for costs on behalf of the applicant, contending that he had lost the Petition in any event.
(3)Mr. Mutugi, learned counsel for the interested parties opposed the application. In his view, the application was unnecessary; and therefore, if anything it is the applicant who should pay costs. He submitted that it was not true that the applicant lost the Petition because of lack of the proceedings. Thus, counsel urged that the prayer for an award of costs be disallowed.
4.Needless to say that it is in the discretion of thecourt to make an award as to costs, depending on the circumstances of each case, for section 27 provides:
5.Thus, in Reid, Hewitt & Co v Joseph, AIR 1918 Cal 717 and Myres v Defries (1880) 5 Ex D 180 the house of Lords noted that: -
6.Similarly, in Halsbury’s Laws of England, 4th Edition (Re-issue), , Vol.10. para 16, the opinion is proffered that:
7.Ordinarily therefore, costs in this matter would go to the respondent and the interested parties, the event herein being the withdrawal of the entire Judicial Review Application by the applicant upon being supplied with copies of the ruling in issue. It matters not, in my view that the applicant ultimately lost the petition before the Chief Magistrate’s Court. Nevertheless, having taken into account the circumstances of the case, including the fact that the applicant opted to have this matter withdrawn at the earliest opportunity, it is my considered view that the judicious thing to do in the circumstances is to order that each party bears own costs.
8It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 30TH DAY OF JANUARY 2023OLGA SEWEJUDGE