1. On 27th October 2025 the Ex-Parte Applicant made an application to withdraw the application dated 16th October 2025.
2. The Respondent opposed the withdrawal as a result of which the court marked the Application as withdrawn subject to costs.
3. Parties were then directed to file and exchange one-page submissions each beginning with the Respondent.
4. It is the applicant's case that he withdrew the application given that cause of action was overtaken by events since the elections took place on 22nd October 2025.
5. The applicant further argued that the respondent did not participate in the matter as a result of which the respondent should not entitled to costs.
Analysis and determination:
6. The only issue for determination is the issue of costs.
7. In determining the issue of costs this court is guided by the principles as enunciated in the cases of Joseph Oduor Anode v Kenya Red Cross Society, Nairobi High Court Civil Suit No 66 of 2009; [2012] eKLR; and Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR); and Kuloba, R., (Ed) (2011) Judicial Hints on Civil Procedure Nairobi: Law Africa 2nd Edn p 94.
8. Mackay, JPH., (Baron of Clashfern) (Ed) (1991) Halsbury’s Laws of England London: LexisNexis Butterworths 4th Edn Re-Issue Vol 10 para 16 is instructive on the Court’s discretion on costs in general, where it was stated that;
“The Court has discretion as to whether costs are payable by one party to another, the amount of those costs and when they are to be paid. Where costs are in the discretion of the court, a party has no right to costs unless and until the court awards them to him, and the court has an absolute and unfettered discretion to award or not to award them. This discretion must be exercised judicially, it must not be exercised arbitrarily but in accordance with reason and justice. If the court decides to make an order about costs the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but the court may make a different.
9. Though the respondent did not file any submissions, the court notes that the respondent filed a notice of preliminary objection and even attended court.
10. The fact that the respondent participated in the suit is an indicator that some work was put in towards defending the suit.
11. The fact that the applicant withdrew the suit cannot form the basis of denying the respondent costs.
Determination;
12. The Respondent is entitled to costs.
Order;
The Applicant shall pay the Respondent the sum of Kshs.10,000 as costs.
2. The Respondent opposed the withdrawal as a result of which the court marked the Application as withdrawn subject to costs.
3. Parties were then directed to file and exchange one-page submissions each beginning with the Respondent.
4. It is the applicant's case that he withdrew the application given that cause of action was overtaken by events since the elections took place on 22nd October 2025.
5. The applicant further argued that the respondent did not participate in the matter as a result of which the respondent should not entitled to costs.
Analysis and determination:
6. The only issue for determination is the issue of costs.
7. In determining the issue of costs this court is guided by the principles as enunciated in the cases of Joseph Oduor Anode v Kenya Red Cross Society, Nairobi High Court Civil Suit No 66 of 2009; [2012] eKLR; and Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR); and Kuloba, R., (Ed) (2011) Judicial Hints on Civil Procedure Nairobi: Law Africa 2nd Edn p 94.
8. Mackay, JPH., (Baron of Clashfern) (Ed) (1991) Halsbury’s Laws of England London: LexisNexis Butterworths 4th Edn Re-Issue Vol 10 para 16 is instructive on the Court’s discretion on costs in general, where it was stated that;
“The Court has discretion as to whether costs are payable by one party to another, the amount of those costs and when they are to be paid. Where costs are in the discretion of the court, a party has no right to costs unless and until the court awards them to him, and the court has an absolute and unfettered discretion to award or not to award them. This discretion must be exercised judicially, it must not be exercised arbitrarily but in accordance with reason and justice. If the court decides to make an order about costs the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but the court may make a different.
9. Though the respondent did not file any submissions, the court notes that the respondent filed a notice of preliminary objection and even attended court.
10. The fact that the respondent participated in the suit is an indicator that some work was put in towards defending the suit.
11. The fact that the applicant withdrew the suit cannot form the basis of denying the respondent costs.
Determination;
12. The Respondent is entitled to costs.
Order;
The Applicant shall pay the Respondent the sum of Kshs.10,000 as costs.