Owiso & 2 others v Attorney-General & another; Law Society of Kenya & 9 others (Interested Parties) (Petition (Application) E020 of 2025) [2025] KESC 62 (KLR) (14 November 2025) (Ruling)

Owiso & 2 others v Attorney-General & another; Law Society of Kenya & 9 others (Interested Parties) (Petition (Application) E020 of 2025) [2025] KESC 62 (KLR) (14 November 2025) (Ruling) Neutral citation: [2025] KESC 62 (KLR) Republic of Kenya In the Supreme Court of Kenya Petition (Application) E020 of 2025 MK Koome, CJ & P, PM Mwilu, DCJ & VP, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola & W Ouko, SCJJ November 14, 2025 Coram: Koome; CJ & P, Mwilu; DCJ & VP, Ibrahim, Wanjala, Njoki, Lenaola & Ouko SCJJ) PETITION (APPLICATION) NO. E020 OF 2025 Between Dr Owiso Owiso 1st Petitioner Khelef Khalifa 2nd Petitioner Ashioya Biko 3rd Petitioner and Hon Attorney-General 1st Respondent Independent Electoral and Boundaries Commission 2nd Respondent and Law Society of Kenya Interested Party Katiba Institute Interested Party Kalonzo Musyoka Interested Party Raila Odinga Interested Party United Democratic Alliance Party Interested Party David Maraga Interested Party Okoiti Okiya Omtatah Interested Party Jimi Richard Wanjigi Interested Party Fred Matiangi Interested Party Kenya Human Rights Commission Interested Party (Being an Application to Withdraw Petition of Appeal pursuant to Sections 3A and 21 (2) of the Supreme Court Act, rule 27 (1) Supreme Court Rules and all other enabling provisions of the law) Supreme Court allows an application for the withdrawal of a petition of appeal made on grounds that a ruling had provided clarity on several issues in question. _The Supreme Court recognized that under rule 27(1) of the Supreme Court Rules 2020, an applicant had the right to withdraw proceedings at any time before the delivery of judgment. The Supreme Court allowed the applicant to withdraw a petition of appeal before it was set for hearing._ Reported by Beryl Ikamari **_Civil Practice and Procedure_** _– appeals at the Supreme Court – withdrawal of a petition of appeal – where an application for the withdrawal petition of appeal was sought on grounds that a decision of the court had already provided clarity on several issues and it was not judicious or prudent to proceed with the petition – whether the court would allow the petition of appeal to be withdrawn - Supreme Court Rules, 2020, rule 27(1)._ Brief facts In a notice of motion, the applicants sought orders to withdraw the petition of appeal on grounds that a ruling of the court provided clarity on various issues and that in their opinion it was no longer prudent or judicious to proceed with the appeal. Issues When would the Supreme Court allow a party to withdraw a petition of appeal? Held 1. Rule 27(1) of the Supreme Court Rules, 2020 provided that the applicant may, with the leave of court, withdraw the proceedings at any time before delivery of judgment. The applicant sought to withdraw the petition of appeal before it was set down for hearing. In effect the application was filed on time. 2. The 1st and 2nd respondents as well as the 4th, 7th and 8th interested parties, did not apply for costs citing that the appeal was a public interest matter. The Supreme Court was persuaded by their assertions and made no order as to costs. _Application allowed; petition of appeal marked as withdrawn._ Citations **Cases** _Lelli v Kenya Medical Training College & 2 others_ Petition 10 of 2021; [2021] KESC 21 (KLR) — Explained**Statutes** Supreme Court Rules, 2020 (cap 9B, Sub Leg) rule 27(1) — InterpretedAdvocates _Mr. Emmanuel Bitta,_ for 1st Respondent _Mr. Abdullahi Garane, Advocate_ for 2nd Respondent _Mr. Paul Mwangi, Advocate_ for 4th interested party _Mr. Nelson W. Osiemo, Advocate_ for 8th Interested Party Ruling 1.Upon perusing the notice of motion dated August 21, 2025 and filed on the same day, seeking orders to withdraw the petition of appeal dated April 23, 2025 and filed on April 24, 2025; and 2.Upon reading the grounds in support of the application, and the supporting affidavits sworn on August 21, 2025 by Owiso Owiso, Khelef Khalifa and Ashioya Biko, wherein they aver that upon perusal of the ruling of the court dated August 15, 2025 in which the court provided clarity on several issues, they consequently formed the opinion that it is no longer prudent or judicious to proceed with the appeal; and 3.Noting that the application was mentioned before the Deputy Registrar on August 22, 2025, wherein the 1st and 2nd respondents, and the 4th, 7th and 8th interested parties stated that they did not oppose the application for withdrawal of the petition of appeal, and it being a public interest matter did not warrant any costs to be awarded; and 4.Considering all that we have stated above, we now opine and determine as follows:i.The applicants right to withdraw a matter is anchored under rule 27(1) of the [Supreme Court Rules, 2020](/akn/ke/act/ln/2020/101/eng@2025-08-20). The rule provides that the applicant may, with the leave of court, withdraw the proceedings at any time before delivery of judgment. This position was settled in the case of [Lelli v Kenya Medical Training College & 2 others](/akn/ke/judgment/kesc/2021/21) [2021] KESC 21 (KLR) where the Court stated as follows:“It therefore suffices to say that indeed a party’s liberty to withdraw a matter cannot be taken away and this court has to allow a party who has approached the court to withdraw such a matter, if he deems so fit to do…..”ii.In the instant case, the application to withdraw the petition of appeal was filed before the appeal was set down for hearing. In effect, the application to withdraw the appeal was filed on time and therefore stands allowed.iii.On costs, the 1st and 2nd respondents as well as the 4th,7th and 8th interested parties, did not apply for costs citing that the appeal was a public interest matter. We are persuaded by their assertion and shall not make any orders as to costs. 5.Consequently, and for the reasons aforesaid, we make the following orders:i.The notice of motion dated August 21, 2025is allowed;ii.The petition of appeal dated April 23, 2025and filed on April 24, 2025is hereby marked as withdrawn;iii.Each party shall bear its costs of the application; andiv.The sum of Kshs 6,000 deposited as security for costs upon lodging of this petition, be refunded to the depositor.It is so ordered. **DATED AND DELIVERED AT NAIROBI THIS 14 TH DAY OF NOVEMBER, 2025 ****……………………………………… ..………………………****M.K KOOME****CHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT ****……………………………………………… . ……………………………………………..****P.M MWILU M.K IBRAHIM****DEPUTY CHIEF JUSTICE & VICE-PRESIDENT JUSTICE OF THE SUPREME OF THE SUPREME COURT COURT ****… .………………………………………… ………………………………………..****S. C WANJALA NJOKI NDUNGU JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT****… .………………………………………… ………………………………………..****I. LENAOLA W. OUKO****JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT** I certify that this is a true copy of the original. REGISTRAR,Supreme Court Of Kenya *[KESC]: Supreme Court of Kenya *[KLR]: Kenya Law Reports