How Courts Set a Costs Ceiling in Election Petitions (and Why It’s Not Meant to Enrich the Winner)

Winning an election petition (or successfully defending against one) doesn’t mean the winning side gets to recover whatever it spent on lawyers without limit. Kenyan courts apply a deliberately calibrated approach to costs in election matters, and a recent High Court ruling sets out the reasoning behind it clearly.

The Case

In Julieta Karigi Kithumbu & Anor v Leo Wa Muthende Njeru & 3 Others (High Court at Embu, Election Court, Petition No. E001 of 2025), C.B. Mwongela & Co. Advocates, acting for the Independent Electoral and Boundaries Commission and the returning officer, successfully had the petition struck out for the petitioners’ failure to pay the mandatory security deposit under Section 78 of the Elections Act. Having won that point, the respondents were entitled to costs, but the amount wasn’t simply whatever they claimed to have spent. The Court capped the award at Kshs 800,000, subject to taxation.

The Governing Principle: Costs Follow the Event, Within Limits

Section 84 of the Elections Act provides that costs generally follow the event, meaning the losing party ordinarily pays the winner’s costs. But Kenyan courts, drawing on Supreme Court and Court of Appeal authority, have consistently held that this principle operates within real limits in election matters, precisely because of the public interest character of election litigation.

The reasoning runs as follows: election petitions serve an important democratic function, testing the legitimacy of an election result. If costs awards became unpredictable or punitive, genuine litigants with legitimate grievances might be deterred from bringing petitions at all, out of fear of a crushing costs order if they lost. At the same time, respondents (often public institutions, election officials, or successful candidates) need some protection against having to fully self-fund a defence against a losing petition.

The balance courts have struck is to allow costs to follow the event, but to set a ceiling on the amount, taking into account the complexity of the matter, the industry and effort actually required, and the stage at which the case was resolved.

Preliminary Dismissal vs. a Full Merits Hearing

One of the more practically useful points from this case is the distinction the Court drew between costs following a full hearing on the merits and costs following an early, interlocutory disposal. Where a petition is struck out at a preliminary stage (as happened here, on the security deposit point alone, without the Court ever needing to examine the substantive election challenge) a lower or capped costs award is generally appropriate, because the corresponding legal work was narrower than a full trial would have required.

This matters for anyone assessing litigation risk before filing or defending an election petition: the exposure to a costs order isn’t fixed at some maximum figure regardless of how the case unfolds, it scales, at least in principle, with how much work the matter actually generated before it concluded.

Why the Ceiling Exists at All

The Court was explicit that costs in election matters should not become “an avenue for enrichment of the successful party.” This is a meaningful constraint: it means a costs award is meant to reasonably compensate a party for what defending or pursuing the petition actually required, not to hand the winning side a windfall simply because they prevailed on a case with significant public profile.

For politicians, parties, and institutions navigating election disputes, understanding this framework helps set realistic expectations on both sides of the ledger, what you might recover if you win, and what you might be exposed to if you don’t.

C.B. Mwongela & Co. Advocates advises clients on election petitions, including costs exposure and recovery, before the High Court and on appeal.