The case in point is Msa High Court Costitutional Petition E017 of 2022: Ndoro Kayuga & George Odhiambo -v- Mike Sonko Gideon Mbuvi Kioko & 2 others. Here, the petitioners, through M/s Oluga & Company Advocates filed a petition seeking various reliefs against the respondents principally of which was to disqualify the candidature of Mike Gideon Mbuvi Sonko (Mike Sonko) from holding any state office arising from his impeachment. It is publicly known that Mike Sonko was impeached as Nairobi City County governor. Now, Mike Sonko has offered his candidature as Mombasa County governor using the Wiper Democratic Movement ticket.
Days after the petition was filed, a Notice of Change of Advocates was filed on behalf of the petitioners, whereby M/s Oluga & Company yielded representing the 1st petitioner to M/s Kiruwi Kamwibua & Company Advocates. Concurrent with the change of advocates, the 1st petitioner took out a motion seeking leave to withdraw the petition against the respondents. In the motion, the 1st petitioner explained that he realized that impeachment of Mike Sonko was more political than legal. That he no longer wished to proceed with the petition and that he wished not to squander scarce judicial time any longer. There was a tussle between the 1st and 2nd petitioner as to whether the 1st petitioner could competently withdraw the petition, but that tussle is remote to this brief.
In answering whether the 1st petitioner could withdraw the petition at his sweet will, the court began by observing that before it was a constitutional petition premised on Article 165 (3) (d) (ii) of the Constitution. The procedural law governing constitutional petitions is the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. Withdrawal of constitutional petitions is the subject of Rule 27.
The court, after surveying both local and foreign decisional law on the subject returned that constitutional petitions, like the one before it, are in the nature of public interest litigation whose adjudication transcends the individual rights of the parties. This is to be contrasted with ordinary conventional adjudications where the party structure is merely bi-polar featuring only the disputants. The court opined that proceedings in a public interest litigation are intended to vindicate and effectuate the public interest by prevention of violation of the rights, constitutional or statutory or sizeable segments of the society while owing to poverty, ignorance, social and economically disadvantages cannot themselves assert and quite often not even aware of those rights. To the court, therefore, withdrawal of such litigation cannot be automatic. Instead, before the court can grant leave for a petitioner to withdraw such litigation under Rule 27, the court must consider the juridical effects of such withdrawal. These juridical effects are:
- That the public interest initially presented in the case will not suffer as a result of the petition;
- That there is no abuse of the process of the law; and
- That the case at hand is not an exercise in futility.
The court considers these juridical effects for a number of reasons. Three examples suffice. One, the court may want to guard against the possibility of a litigant settling such public interest litigation out of the court to their advantage and then seeking withdrawal of the case. Two, the court does not want to be used only as device where a litigant with ulterior motive approaches the court and puts another within the clutches of law only to wrench some personal benefit. Three, the court would also not want to labour in vain where the litigation has been rendered moot. Judicial time is said to be way too precious to be frittered away on abstract and hypothetical questions.
The court, being convinced that the petition against Mike Sonko raises public interest issues and that the 1st petitioner did not surmount the laid down test, refused withdrawal of the petition in its ruling of 24th May 2022. The 1st petitioner was however discharged from the petition. The 2nd petitioner was ordered to proceed with the petition to its logical conclusion. Read the full ruling here.
So yes, once a constitutional petition is lodged, you cannot just withdraw it at a whim or at your sweet will. Only with leave of court.