Setting timelines for establishment of courts across Kenya by the High Court is unrealistic as the Judiciary does not fund itself

Headnote: The petitioner sought to compel the 1st respondent to immediately establish a High Court in every county and Magistrates’ Court in every constituency/sub-constituency within 18 months. The court held that the President (the 2nd respondent) ought not to be sued in his name or office. The Attorney General was the correct party to be sued whenever the President allegedly contravened any constitutional provisions. The court further held that setting timelines with regards to establishment of courts across Kenya would be unrealistic as the Judiciary did not fund itself. The court also held that it was not constitutionally mandated to issue an order compelling the 2nd respondent to fund the Judiciary.

Olili v President of the Supreme Court of Kenya & another; Law Society of Kenya (Interested Party) (Constitutional Petition E027 of 2022) [2024] KEHC 7182 (KLR) (16 May 2024) (Judgment)

Neutral citation: [2024] KEHC 7182 (KLR)

High Court at Nakuru

HK Chemitei, SM Mohochi & TA Odera, JJ

May 16, 2024

Reported by Kakai Toili

Jurisdiction – jurisdiction of the High Court – jurisdiction to set timelines for establishment of courts across Kenya - whether the High Court could set timelines for the Judiciary with regards to establishment of courts across Kenya - whether the High Court could issue orders compelling the President to fund the Judiciary – Constitution of Kenya, article 173.

Constitutional Law – Office of the President – protection from legal proceedings against the President - whether the President could be sued in his name whenever he allegedly contravened any constitutional provisions – Constitution of Kenya, article143(2).

Constitutional Law - concept of non-justiciability – nature of the concept of non-justiciability - what were the doctrines which were comprised in the concept of non-justiciability of disputes before courts - Constitution of Kenya, article 159.

Constitutional Law – fundamental rights and freedoms – right to equality and freedom from discrimination - whether different treatment would amount to discrimination if the criterion for differentiation was reasonable and objective

Brief facts

The petitioner sought for among other orders; a declaration that the omission and or refusal by the respondents to establish a High Court in every county and Magistrates’ Court in every constituency/sub-county was unconstitutional and in violation of the rights and freedoms of the petitioner and other citizens. The petitioner stated that the National Executive, the executive structures in the county governments, Parliament and the legislative assemblies in the county governments as State organs had taken positive steps in ensuring reasonable access to their services in all parts of Kenya by setting up shops in all counties/sub counties and wards in pursuit of ensuring that all people could easily access their services thus removing the burden that would have been shouldered by the people when moving from one area to another in pursuit of these services. 

The petitioner further stated that the Judiciary had failed to ensure reasonable access to its services in all parts of Kenya as the President of the Supreme Court of Kenya (the 1st respondent) had failed to establish High Courts in all the 47 counties for example Lamu, Mandera, Isiolo, Turkana, Samburu and Elgeyo Marakwet Counties did not have a High Court. The petitioner further averred that the respondent had also failed to establish Magistrate’s Courts in all constituencies/sub-counties.

Issues

  1. Whether the High Court could set timelines for the Judiciary with regards to establishment of courts across Kenya.
  2. Whether the President could be sued in his name whenever he allegedly contravened any constitutional provisions.
  3. What were the doctrines which were comprised in the concept of non-justiciability of disputes before courts?
  4. Whether the High Court could issue orders compelling the President to fund the Judiciary. Whether different treatment would amount to discrimination if the criterion for differentiation was reasonable and objective.

Held

  1. A literal reading of article 143(2) of the Constitution showed that the President was immune from civil proceedings in respect of anything done or not done in exercise of his power under the Constitution while in office. The President of the Republic of Kenya (the 2nd respondent) ought not to be sued in his name or office. The Attorney General was the correct party to be sued whenever the President allegedly contravened any constitutional provisions.
  2. The court took judicial notice that there was an occupant of the office in question and that was the President of Republic of Kenya. He was the one who had been sued as the 2nd respondent in the petition. The petitioner had gone afoul of express provisions of article 143(2) of the Constitution, which addressed itself to the office and the occupier of the office. The 2nd respondent was improperly enjoined and the petition against the 2nd respondent was therefore wrong itself.
  3. In a constitutional petition, a party was not supposed to merely cite constitutional provisions. S/he must with some reasonable degree of precision identify the constitutional provisions that were alleged to have been violated or threatened to be violated and the manner of the violation and/or threatened violation and state some particulars of alleged infringement to enable the respondent to be able to respond to each allegation accordingly.
  4. The petitioner cited articles 1(1), 2(1) ,3(1) ,6(1),10(1), 19, 20(1), 22(1), 23(1), 24, 27, 39(3), 48, 43, 50(1), 131(2)(e) and 174 purportedly infringed but only set out the manner in which articles 6(1), 10(1), 27, 39(3), 48, 43, 131(2) (e), and 174 were alleged to be infringed. The court therefore declined to accept the argument that the petition was imprecisely drafted.
  5.  He who alleged must prove. In the circumstances, the case relied on by the petitioner may not aid her case as she had not demonstrated that delay in establishing the courts was deliberate.
  6. Under the framework outlined in article 173 of the Constitution, the Chief Registrar would be required in every financial year to prepare estimates of expenditure for the following year, and submit them to the National Assembly for approval and upon approval by the National Assembly, the expenditure of the Judiciary shall be a charge on the consolidated fund and the funds shall be paid directly into the Judiciary. Setting timelines with regards to establishment of courts across Kenya would be unrealistic as the Judiciary did not fund itself. The petitioner had not demonstrated that the Judiciary had sufficient resources to establish the courts but refused or failed to do so.
  7. Following the promulgation of the Constitution of Kenya, 2010, there had been significant improvement in the promotion and protection of access to justice. Access to justice in Kenya was to be attained progressively.
  8. The concept of non-justiciability of disputes before courts was a sound one in law and it had its basis in article 159 of the Constitution which routed for alternative dispute resolution mechanisms. The concept of non-justiciability was comprised of three doctrines;
    1. the political question doctrine;
    2. the constitutional-avoidance doctrine; and,
    3. the ripeness doctrine.
  9. Article 173 of the Constitution made express provisions regarding the Judiciary fund. The funds were to be allocated to the Judiciary upon approval by the National Assembly, and it was the work of the Parliament to enact legislation to provide for the regulation of the fund.
  10. The petitioner had asked the court to issue orders compelling the 2nd respondent to fund the Judiciary. The court was not constitutionally mandated to issue such an order. The order sought if granted would interfere with constitutional mandate of the National Assembly as regards to approval of expenditures. The avenue the applicant would seek compliance with the statute would be by way of judicial review orders of mandamus to compel Parliament to comply with the statutory duty imposed on it to allocate and appropriate funds but not through a petition.
  11. The court was not constitutionally mandated to direct the 1st respondent on how to perform her functions. The concept of non-justiciability was therefore applicable in the petitions in regards to prayers (b) and (c) which sought a declaration that the omission and or refusal by the respondents to establish a High Court in every county and Magistrates’ Court in every constituency/sub-county was unconstitutional; and an order compelling the 1st respondent to immediately establish a High Court in every county and Magistrates’ Court in every constituency/sub-constituency within 18 months.
  12. The Constitution prohibited all forms of discrimination. A party alleging discrimination was duty bound to prove it. The petitioner had not demonstrated how she and other citizens had been discriminated. Different treatment would not amount to discrimination if the criterion for differentiation was reasonable and objective. Establishment of courts was to be done progressively and therefore there was no intention on the part of the Judiciary to discriminate against the petitioner and other citizens who resided in the areas where the High Courts and Magistrates’ Courts were yet to be established.

Petition dismissed; each party to bear their own costs.

Court of Appeal affirms Kshs. 2.5 million awards to mother forced to give birth on hospital floor, subjected to abuse, and denied dignified care

Headnote:      The 1st respondent alleged violations of her constitutional rights at Bungoma County Referral Hospital during childbirth. She claimed she was forced to give birth on the floor due to overcrowding, subjected to verbal and physical abuse by nurses, and denied dignified care. The trial court found her rights to dignity, humane treatment, health, and quality maternal care had been violated and awarded her Kshs. 2.5 million in damages. The appellants challenged the decision, citing insufficient evidence, reliance on video evidence, and systemic constraints. The appellate court dismissed the appeal, affirming the trial court’s findings and award.

County Government of Bungoma & 2 others v JOO & 2 others (Civil Appeal 61 of 2018) [2024] KECA 1377 (KLR) (23 February 2024) (Judgment)

Neutral Citation: [2024] KECA 1377 (KLR)

Court of Appeal at Kisumu

PO Kiage, F Tuiyott & JM Ngugi, JJA

February 23, 2024

Reported by John Ribia

Constitutional Law – fundamental rights and freedoms – social economic rights - rights to dignity – right to humane treatment – right to health and quality maternal care – where an expectant mother was mistreated at a hospital during child birth - whether the rights to dignity, humane treatment, health, and quality maternal care of an expectant mother were violated during a hospital admission process in which the expectant mother was; subjected to physical and verbal abuse; denied care in the first instance when she went into labour; forced to give birth on the floor, in the corridor and in full view of other people; forced to walk back to the delivery room while carrying her un-expelled placenta; and while back in the delivery room, she was left unattended to and was not given any pain or other medication – Constitution of Kenya articles 2(5) and (6). 22(1). 25, 27, 28, 29(e) and (f), 35(1) and (6), and 43 (1); Convention on Elimination of All Forms of Discrimination against Women (CEDAW), (1979) article 12; International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966) article 10; Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, Maputo Protocol (2003) article 24

Constitutional Law – social economic rights - right to health and quality maternal care – progressive realization of social economic rights - where an expectant mother was mistreated at a hospital during child birth –  to what extent was the right to the highest attainable standard of health realizable in Kenya - what was the minimum core of a woman’s right to respectful maternal care during child birth - whether the principle of progressive realization of socio-economic rights such as the right to the highest attainable standards of health required more than clinical components and mandated ensuring positive and affirming care experiences - whether the appellants' plea of progressive realization, citing limited resources such as drugs, hospital beds, and medical personnel, absolved them of their duty to uphold the respondent's immediate rights to dignity and humane treatment during maternity care - Constitution of Kenya articles 2(5) and (6). 22(1). 25, 27, 28, 29(e) and (f), 35(1) and (6), and 43 (1); Convention on Elimination of All Forms of Discrimination against Women (CEDAW), (1979) article 12; International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966) article 10; Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, Maputo Protocol (2003) article 24

Law of Evidence – electronic evidence – video evidence – admissibility of video evidence – claim challenging admissibility of video evidence on appeal when no objections or cross examination on the presenter of the video evidence were done at trial - whether video evidence, that was admitted without objection at the trial court, could be challenged on grounds of inadmissibility on appeal - whether the failure to cross-examine the presenter of video evidence at trial precluded one from contesting the weight assigned to the video evidence on appeal

 

Brief facts

The 1st respondent was admitted to Bungoma County Referral Hospital on August 8, 2013, for childbirth. Despite a Presidential Directive for free maternity services, she was forced to purchase her own supplies and share a bed due to overcrowding. During labor, the 1st respondent gave birth on the hospital floor after being denied timely assistance by nurses. She alleged physical and verbal abuse by the nurses and was forced to carry her un-expelled placenta to the delivery room. The 1st respondent claimed the hospital failed to provide dignified care and neglected to inform her of grievance procedures.

The trial court held that the appellants violated the 1st respondent constitutional rights under articles 28, 43, and others, including her rights to dignity, non-discrimination, and quality healthcare. The court awarded Kshs. 2.5 million in damages and directed the appellants to issue a formal apology. Dissatisfied, the appellants filed an appeal, challenging the sufficiency of evidence, the legal findings on constitutional violations, and the damages awarded.

Issues

  1. Whether the rights to dignity, humane treatment, health, and quality maternal care of an expectant mother were violated during a hospital admission process in which the expectant mother was;
    1. subjected to physical and verbal abuse;
    2. denied care in the first instance when she went into labour;
    3. forced to give birth on the floor, in the corridor and in full view of other people;
    4. forced to walk back to the delivery room while carrying her un-expelled placenta; and
    5. while back in the delivery room, she was left unattended to and was not given any pain or other medication.
  2. To what extent was the right to the highest attainable standard of health realizable in Kenya?
  3. What was the minimum core of a woman’s right to respectful maternal care during child birth?
  4. Whether the principle of progressive realization of socio-economic rights such as the right to the highest attainable standards of health required more than clinical components and mandated ensuring positive and affirming care experiences.
  5. Whether the appellants' plea of progressive realization, citing limited resources such as drugs, hospital beds, and medical personnel, absolved them of their duty to uphold the respondent's immediate rights to dignity and humane treatment during maternity care.
  6. Whether video evidence, that was admitted without objection at the trial court, could be challenged on grounds of inadmissibility on appeal.
  7. Whether the failure to cross-examine the presenter of video evidence at trial precluded one from contesting the weight assigned to the video evidence on appeal

Held

Per JM Ngugi, and F Tuiyott, JJA

  1. In a first appeal., the standard of review was de novo: the court was required to review issues of both facts and law afresh and come to its own independent conclusions. The trial court had the advantage of seeing and assessing the demeanor of witnesses. The court must be cognizant of the fact that it should not interfere with the findings of fact by the trial court unless they were based on no evidence or on a misapprehension of the evidence or the trial court was shown demonstrably to have acted on wrong principles in reaching its findings.
  2. The video clips were not wrongly admitted into evidence. The trial court ruled in limine about the conditions for and modality of admissibility of the evidence of the video clips. The appellants did not appeal against that ruling and neither could it be said to have preserved that question for appeal. No objections were raised to the admission of the video clips into evidence it was sought to produce them.
  3. In producing the clips, the witness adhered to the conditions and modality set by the trial court. The appellant’s challenge to the clips was mainly about the weight to be attached to the clips. That was a question for the trial court. The trial court was persuaded that the clips depicted authentic scenes from the hospital on the material day and believed the 1st respondent when she said that she recognized herself and some of her fellow patients in the video clip. Apart from the claim that the content of the video clips materially contradicted the 1st respondent’s other claims, the appellants had not pointed out why the court should, on appeal, depart from findings of credibility and weight of the electronic evidence.
  4. The appellants intimated that it was a tale tell sign that the video clips were not authentic because of alleged contradictions. In particular, that there were empty beds yet it was claimed that the hospital labour ward was full.  The presenter of the video was not cross examined. Without a developed record about the claims of alleged contradiction regarding the empty beds, the complaint by the appellants on appeal was unavailing. There could be any number of explanations for the supposed anomaly, if at all it was one. It could be that the patients were not in their beds at the time the clips were taken. It could be that the appellants were simply mis-reading the video clips. The appellants in their pleadings conceded that the hospital was overstretched and the patients shared beds. The authentication of the video clips, therefore, dissipated that line of complaints.
  5. The evidence presented by the 1st respondent in the case easily met the evidentiary threshold. She demonstrated on a balance of probabilities that:
    1. She was admitted to the hospital and that the hospital was overstretched to the extent that she had to share a bed with another patient.
    2. She had to purchase her own drugs and cotton wool despite the government policy and Presidential directive that maternity services were free of charge.
    3. She gave birth on the floor, in the corridor of the hospital, and without assistance.
    4. She underwent physical and verbal abuse at the hands of the two nurses who attended to her when she fell unconscious on the floor.
    5. She was forced to carry her un-expelled placenta back to the delivery room in further act of cruelty and humiliation.
    6. She was not informed of the process she could use to file any grievance she had.
  6. Whether the evidence was contradictory or not was an evidentiary question of fact not a question of law to be determined on the crucible of the principle requiring that constitutional petitions be pleaded with reasonable precision. It was not pleaded with reasonable precision. The petition was quite detailed both in terms of the factual claims and the constitutional provisions the 1st respondent alleged had been breached. Upon an independent review of the evidence presented to the trial court, J sufficiently proved her factual claims.
  7. Under the Constitution, every woman was entitled to respectful maternal care during childbirth as part of their social and economic rights enshrined in article 43. That aspect of the right to health was not subject to progressive realization. It was part of the minimum core of the right that must be realizable immediately and not progressively. The minimum core of a woman’s right to respectful maternal care during child birth must, as the trial court expounded, include:
    1. the right to be free from physical violence and verbal abuse during labour and childbirth;
    2. the right to be free from discrimination during labour and childbirth;
    3. the right to a dignified and respectful care – including being granted acceptable levels of privacy and confidentiality during labour and childbirth.
  8. The three aspects of a woman’s right to health as enshrined in article 43 of the Constitution and amplified by the various conventions and treaties to which Kenya was party to (which were also part of the laws of Kenya by dint of articles 2(5) and 2(6) of the Constitution) constituted part of the minimum core of the right to health which was not subject to progressive realization. Those included: article 12 of the Convention Against the Elimination and Discrimination Against Women; article 10 of the International Covenant on the Economic, Social and Cultural Rights; and article 24 of the Protocol to the African Charter on Human and People’s Rights of Women in Africa (Maputo Protocol). The appellants were obligated to ensure the 1st respondent enjoyed the minimum core of her right to maternal health when she was admitted at the hospital.
  9. Each of the aspects of the minimum core were violated during the 1st respondent’s admission at the hospital:
    1. she was slapped by the two nurses who accused her of “soiling” the corridor when she gave birth in the corridor.
    2. She was verbally assaulted and shouted at.
    3. She was denied care in the first instance when she informed the nurse that she was going into labour.
    4. She was subjected to utmost indignity and disrespect by being forced to give birth on the floor, in the corridor and in full view of other people.
    5. She was further humiliated by being forced to walk back to the delivery room while carrying her un- expelled placenta.
    6. While back in the delivery room, she was left unattended to, neglected, and was not given any pain or other medication.
  10. Whereas the appellants could plausibly make the plea of progressive realization respecting the availability of drugs, hospital beds and even shortage of medical personnel, human rights-based maternity care commanded by a purposive reading of article 43 of the Constitution included not only clinical components, but also ensuring positive and affirming care experiences for women during childbirth. All women had the right to dignified, respectful health care throughout pregnancy and childbirth as well as freedom from violence and discrimination. The 1st respondent ’s rights in that regard were outrageously and grossly violated.
  11. At the systemic level, the appellants were also liable for the eminently clear failure to establish a human rights-based clinical protocols for women during child birth. Such protocols, if available, included not only clinical components but outlined measures to ensure all women were accorded the right to dignified, respectful health care throughout pregnancy and childbirth as well as freedom from violence and discrimination. That included the provision of respectful maternity care that maintained women’s dignity, privacy and confidentiality, enabled informed choice and continuous support throughout labour and childbirth, and ensures freedom from mistreatment.
  12. Health systems, such as the appellants’, must be held accountable for the mistreatment of women during childbirth, and for failure to effectively prevent and respond to these harmful practices. Beyond providing resources to ensure quality, accessible maternal health care, the appellants were obligated to provide clear policies to ensure dignified, respectful health care throughout pregnancy and childbirth for all women.
  13. A purposive reading of the right to health in article 43 of the Constitution as read together with the international human rights treaties cited above which accentuated the right dictate that health systems must be organized and managed in a manner that ensures respect for women’s sexual and reproductive health and their other human rights – including the right to dignity. That must include action to ensure that specific policies to promoted respectful maternal care had not only been adopted, but that they were translated into meaningful action through implementation.
  14. The appellants violated 1st respondent ’s right to dignified, respectful health care during her childbirth, as well as her right to be free from violence and discrimination. The appellant was subjected to abuse, neglect and disrespect during childbirth. Additionally, she was denied her right to be equal in dignity; to be free to seek; and receive information; and to be free from discrimination. The 1st respondent was denied the right to enjoy the highest attainable standard of physical and mental health, including her sexual and reproductive health. While the appellants were vicariously liable to the direct abuse suffered by the 1st respondent in the hands of the hospital, they were, additionally, directly liable for the failure to put in place specific policies to promote respectful maternal care and to ensure that those policies translated into meaningful action through implementation.
  15. The award of damages was not excessive at all. I say so for two reasons. The mistreatment and indignity that the 1st respondent went through in the hands of the agents of the appellants was simply depraved, malevolent and outrageous. The amount awarded must signal to the appellants and other duty bearers the society’s sense of indignant and righteous outrage at the conduct. The award of damages was comparable to others awarded in similar situations. In Federation of Women Lawyers (Fida – Kenya) & 3 others v Attorney General & 2 others; [2019] eKLR, for example, the court awarded the 1st respondent Kshs. 3,000,000 in a case where the 1st respondent had suffered physical, psychological, emotional and mental anguish, stress, pain and death in a health care setting (refusal to offer safe abortion).
  16. The award of Kshs. 2.5 Million to the 1st respondent for all the depravity and indignity she suffered at the hands of the agents of the appellants was hardly sufficient to atone for the emotional trauma and scarring she suffered. There was no reasonable basis for upsetting it.

    Per Kiage, JA (Concurring)
  17. It was a terrible blight on Kenya’s public health system that in 2024, a mother in the process of bringing forth a new life, a veritable miracle that ought to leave all the awe of the mother, should have been subjected to the abuse, violence, humiliation and utter indignity that the 1st respondent endured. It was pain so excruciating and so traumatic she not only passed out, her mind literally blocked the episode temporarily from her mind, to protect her sanity.
  18. No mother in labour, new or repeat, should ever have to be insulted and assaulted by maternity nurses. Nor should she have to give birth unassisted on the floor of a hospital no matter how stretched the labour force, and be made to carry the placenta in her hands as some form of punishment. It was the business of the relevant level of government to ensure a functional system of health, including maternal health care. The instant case demonstrates signal and abject failure in that regard.
  19. What the 1st respondent was put through was a monumental shame in the part of the Bungoma County Referral Hospital, and one shuddered to imagine that that might not be an isolated case, a black swan. If hospitals could have in employment nurses with such grotesquely horrendous, callous and cynical attitudes towards patients, and mothers in labour at that, then such hospitals were a curse, not places of succour. If hospitals did not ensure that their staff were patient-friendly, patient-responsive, and patient-centric in all their actions and processes then woe was the Kenyan patient. And that state of affairs must be sternly rebuked as not reflective of the society we aspire to.
  20. The horror of what the 1st respondent was put through spoke to a wanton and widespread disregard for the right to dignity by so many levels of official don. People in authority see themselves as some kind to tin gods, and the institutions at which they work as their personal fiefdoms. They perceived those who sought services, paid for, mind you, by the taxes of Mwananchi, as some kind of inconvenience and they would think it right to be rude, discourteous, disrespectful and inattentive to the needs of the service-seeker whom they strip of dignity with abandon, and often, with impunity.
  21. The High Court was right to find the appellants liable and to make the award of damages. In the same way there was a fundamental principle in environmental law that the polluter pays, courts ought, if the rights enumerated in the Bill of Rights were to have meaning beyond mere pious declarations, to adopt a more robust, protective approach that, in appropriate cases, and the instant one, the abuser pays. And really pays. The Kshs. 2.5 million awarded to the 1st respondent should therefore not be disturbed.

Appeal dismissed with costs awarded to the 1st respondent.

A party may with leave of the Supreme Court, withdraw the proceedings at any time before the delivery of judgment.

Headnote:      The Supreme Court allowed the Dock Workers Union to withdraw its petition challenging a grain handling project at the Port of Mombasa, citing benefits for members. Allegations of improper motives were noted but did not bar withdrawal.

Dock Workers Union & another v Portside Freight Terminals Limited & 10 others (Petition (Application) E010 of 2024 & Petition E011 of 2024 (Consolidated)) [2024] KESC 66 (KLR) (8 November 2024) (Ruling)

Neutral Citation: [2024] KESC 66

Supreme Court of Kenya

PM Mwilu, DCJ and VP, MK Ibrahim, SC Wanjala, I Lenaola, and W Ouko, SCJJ

November 8, 2024

Reported by John Ribia

Civil Practice and Procedure – withdrawal of suit – withdrawal of proceedings before the Supreme Court - whether the Supreme Court had the power to deny a party that sought to withdraw proceedings before it - of the Supreme Court Rules (Cap 7B) (2020) rule 27(1)

Brief facts

The Dock Workers Union, the 1st appellant in SC Petition No. E010 of 2024, filed a petition challenging the development of a second grain handling facility at the Port of Mombasa. Later, the Union sought to withdraw the petition, arguing that the project would create jobs, increase revenue for the Kenya Ports Authority, and lower grain prices. The Union claimed its Executive Committee had not authorized its joinder in earlier proceedings or the filing of the petition. The 2nd appellant, opposed the withdrawal, alleging improper motives and perjury by the Union’s Secretary General. Despite these allegations, the respondents in the petition did not file any responses or objections to the application.

Issue

Whether the Supreme Court had the power to deny a party that sought to withdraw proceedings before it.

Held

  1. By the provisions of rule 27(1) of the Supreme Court Rules, 2020 a party may with leave of the Supreme Court, withdraw the proceedings at any time before the delivery of judgment. A party’s right to withdraw its case from court could not be denied, and the court could not prohibit a party from doing so.
  2. Since the Union had expressed its desire to withdraw its petition, and despite the 2nd appellant’s arguments and concerns, the Supreme Court allowed the Union’s Motion for leave to withdraw SC Petition No. E010 of 2024. The withdrawal effectively left SC Petition No. E011 of 2024 [Okiya Omtatah Okoiti vs. Portside Freight Terminals Limited & 10 Others] as the only petition of appeal in the matter.
  3. An award of costs was an exercise of discretion. Costs follow the event. The 2nd appellant, in his replying affidavit, had not sought for costs of that application. The appeal was being withdrawn before the respondents had filed any responses or substantive submissions to the consolidated appeal. There would be no prejudice to any of the parties.

Petition withdrawn, no order as to costs.