Samuel Kambi Kazungu v Chea Gunga Mwinga & Independent Electoral and Boundaries Commission [2013] KEHC 1115 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MALINDI

ELECTION PETION NO. 10 OF 2013

HON. SAMUEL KAMBI KAZUNGU..........................................................PETITIONER

-VERSUS-

HON. CHEA GUNGA MWINGA...............................................................1ST RESPONDENT                       INDEPENDENT ELECTORAL AND

BOUNDARIESCOMMISSION.........................................................2ND RESPONDENT

RULING

On 10TH  June 2013, the  Petitioner  filed  an application  under  Rule 23(3)of the Elections (Parliamentary and County Election} Petition Rules, 2013{hereinafter referred  to  as Election Petition Rules)seeking to  withdraw  this  petition. The Petitioner states that he has been compelled to withdraw the petition because of his recent appointment by the President to be the Cabinet Secretary for Labour, Social Security and Services. In  compliance  with  Rule 24(2)of  the  Election Petition Rules,the  Petitioner  has published  the  notice  of  withdrawal  of  the petition in the Kenya Gazette. The notice appears as Gazette Notice No.8631of 21ST June 2013. Both Respondents do not object to the Petitioner withdrawing

the petition. This court therefore  allows the Petitioner  to withdraw  this petition. The petition  is marked as duly withdrawn.

As to the issue of costs, there is no doubt that the Respondents incurred costs in defending this petition. Since this court  was seized with  jurisdiction  to hear the petition, it became aware of the tremendous  work  that  the Respondents have put  in preparing  and in defending  this petition. Costs usually follow  the event. They are entitled to be paid costs for their  troubles. However, this court  notes that  the  petition   was  withdrawn  before  the  formal  hearing  of  the  petition

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commenced.  There  were  preliminary   issues which  this  court  dealt  with  that required  attendance by counsel. I have taken that too into account for the order that I will shortly issue pursuant to Rule 34 (1)of the Election Petition Rules.

Rule 34 (1) (a)of the Election Petition Rulesgrants this court  jurisdiction  to cap the  total  amount  of costs that  shall be paid in respect of the  petition. In the instant  petition, the Petitioner  shall pay to the Respondents costs of petition. I have taken  into  account  the  nature  and  the  complexity  of  work  involved  in defending Election Petitions. I have also taken into account the fact that counsel were   forced   to   suspend  other   legal  work   because  of  the   Constitutional imperative  that requires Election Petitions to be heard and determined  within  six (6) months from the date of the publications of the results. I have also taken into consideration  that  counsel  for  the  Respondents were  compelled  to  travel  to Malindi  and spend several days here as they  attended  court.  This constituted additional  expense. Taking all these factors into consideration, I will cap the total costs to be awarded to the Respondents by the Petitioner at Kshs.2. 5 million. The 1st Respondent shall be awarded a maximum  of Kshs.1. 0million  costs while the 2nd  Respondent  shall  be  awarded  a maximum  of  Kshs. l.5 million   costs. The Respondents  shall  present  their  respective  bills  of  costs for  taxation  to  the Deputy Registrar of this court subject to the above limit. The sum of Kshs.5OO,OOO/-  deposited  by  the  Respondents  shall  be  applied,  in  the  first instance, towards the settlement of the said costs. It is so ordered.

DATED ATMALINDI THIS 3RD DAY OF JULY 2013

L. KIMARU

JUDGE

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