Mugambi v Independent Electoral and Boundaries Commission & another [2022] KEHC 10756 (KLR)

Mugambi v Independent Electoral and Boundaries Commission & another (Petition E004 of 2022) [2022] KEHC 10756 (KLR) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10756 (KLR)

Republic of Kenya

In the High Court at Meru

Petition E004 of 2022

EM Muriithi, J

June 9, 2022

Between

Hillary Mutuma Mugambi alias Hillary Sandi

Petitioner

and

Independent Electoral and Boundaries Commission

1st Respondent

Returning Officer North Imenti Constituency

2nd Respondent

Ruling

1. The petitioner filed a constitutional application by petition dated 30/5/2022 seeking a declaration that the respondents had violated specific articles of the Constitution and a substantive finding that he was qualified to be nominated to vie for Nyaki West Ward in the August 9, 2022 Election, together with a consequential order compelling the respondent to issue a nomination certificate.

2. The respondents’ counsel filed a notice of appointment and preliminary objectiondated 31/5/2022 together with a list of authorities in support of the preliminary objection.

3. Subsequently, the parties agreed on the withdrawal of the petition but failed to agree on whether there should be an order as to costs. The petition was marked withdrawn on 31/5/2022 subject to ruling on costs.

4. The general principle on costs as set out in section 27 of the Civil Procedure Act and rule 26(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules) is that costs are in the discretion of the court and that costs follow the event.

5. Under Sub rule 2 ofrule 26 of the Mutunga Rules, the following direction is given:“(2)In exercising its discretion to award costs, the court shall take appropriate measures to ensure that every person has access to the court to determine their rights and fundamental freedoms.”

6. In this application, although the principle that costs follow the event dictate that the petitioner who has withdrawn his petition should pay for the costs, the nature of the application which sought the enforcement of rights and constitutional reliefs would call for the exercise of discretion to allow for access to the court and constitutional reliefs as prescribed under rule 26(2) of the Mutunga Rules.

7. The court further notes that, save for the filing of the notice of appointment and preliminary objection and list of authorities, the matter has not been heard and determined on the merits and the preliminary objection itself was not considered.

8. In these circumstances, and to give effect to the principle of access to court and justice under article 48 of the Constitution and rule 26(2) of the Mutunga Rulesand bearing in mind that there has not been a determination on the merits or on the preliminary objection to the petition, the court considers that there should be a no order as to costs, so that each party bears its own costs.

Order 9. Accordingly, for the reason set out above, the court makes an order that there shall be no order as to costs in the petition which has been withdrawn by consent of the parties.Order accordingly.

DATED AND DELIVERED THE 9TH JUNE, 2022. EDWARD M. MURIITHIJUDGEAppearancesM/S Nge’ntu & Co. Advocates for Petitioner.M/S J.M. Mwangi & Co, Advocates for the Respondents.2