Automated Summary
Key Facts
The case involves a judicial review application challenging the purportedly illegal, discriminatory, and unreasonable mayoral elections of the City Council of Nairobi held on 19th July 2006. Applicants sought orders for abatement or withdrawal of the suit after the respondents (elected officials) completed their terms, were elected as members of parliament in December 2007, and the first respondent retired. The court ruled the motion was overtaken by events but ordered the applicants to bear the respondents' costs due to the significant time and resources spent on the case. The application was withdrawn with costs to the respondents.
Issues
- The applicants challenged the validity of the purported 2006 mayoral elections of the City Council of Nairobi, alleging they were illegal, discriminatory, and unreasonable under the Local Government Act.
- The court addressed whether provisions of the Civil Procedure Act (sections 3, 3A, 63(e)) and related rules applied to the judicial review application, given the special jurisdiction of judicial review under Order 53 of the Civil Procedure Rules.
- The court evaluated if the case should be marked as abated or withdrawn due to the respondents completing their terms and being elected to parliament, with the applicants seeking to avoid costs.
- The judge considered if the applicants could rely on the court's inherent powers for their judicial review application, since the Civil Procedure Act and its rules were not applicable to such proceedings.
Holdings
- The court ruled that a suit can only abate if the plaintiff or defendant dies, and neither the applicants nor respondents have died. This aligns with Order 23 of the Civil Procedure Rules, which does not apply to judicial review proceedings under Order 53.
- The court held that Sections 3, 3A, and 63(e) of the Civil Procedure Act do not apply to judicial review applications, which are governed by Order 53. Judicial review is a special jurisdiction where neither the Civil Procedure Act nor its Rules apply, as interpreted under Section 8 of the Law Reform Act in Hotel Kunste v Commissioner of Lands.
- The court found the Applicants should bear the costs of the application, guided by the principle in Section 27 of the Civil Procedure Act that costs follow the event. The Respondents incurred significant time and expenses in preparation and argumentation, and the Applicants withdrew the motion when the Respondents' terms were nearing completion.
- The court determined that the notice of motion dated 4/8/06 is hereby withdrawn with costs to the Respondents. The application was overtaken by events as the respondents completed their terms and were elected members of parliament, and the applicant's counsel withdrew the motion rather than allowing further proceedings.
Remedies
The court ruled that the notice of motion dated 4/8/06 is hereby withdrawn with costs to the Respondents. This decision followed the conclusion that the matter was overtaken by events, including the completion of the Respondents' terms and subsequent elections. The Applicants' request to withdraw the motion was accepted, but the court determined that the Applicants should bear the costs incurred by the Respondents during the proceedings.
Legal Principles
The court applied the principle that costs should follow the event, ruling that the Applicants must bear the costs of the application as the motion was withdrawn after significant preparation and expenses by the Respondents.
Precedent Name
HOTEL KUNSTE V THE COMMISSIONER OF LANDS
Cited Statute
- Civil Procedure Rules
- Law Reform Act
- Civil Procedure Act
- Local Government Act
Judge Name
R.P.V. Wendojh
Passage Text
- In interpreting S 8 of the Law Reform Act, the Court of Appeal in the case of HOTEL KUNSTE V THE COMMISSIONER OF LANDS (1995 - 1998) KLR held that Judicial Review is a special jurisdiction and neither the Civil Procedure Act nor its Rules apply.
- In sum the notice of motion dated 4/8/06 is hereby withdrawn with costs to the Respondents.