143 4.10.5 The election court ought to be guided by the principles of fairness, justice and access to justice in making an award for costs. Costs should not seek to punish an unsuccessful litigant (Dennis Magare Makori & Another v IEBC & 3 Others, Kisumu Election Petition Appeal No. 22 of 2018; Philip Kyalo Kaloki v IEBC & 2 Others, Election Petition Appeal 25 of 2018). 4.10.6 Once an election court caps the costs of, and incidental to, an election petition, the actual amount payable is determined through taxation. The Registrar taxes the costs of a parliamentary or county election petition in the same manner as costs are taxed in civil proceedings and in accordance with the Civil Procedure Act (Rule 31, Elections (Parliamentary and County Elections) Petitions Rules, 2017). 4.10.7 Unlike an ordinary civil court, an election court cannot decline to award costs solely on the ground that the award of costs is a matter of judicial discretion (Joseph Amisi Omukanda v IEBC & 2 Others, Kisumu Civil Appeal No. 45 of 2013; George Mike Wanjohi v Steven Kariuki, Supreme Court Petition No. 2A of 2014). The general rule that the award of costs is in the discretion of the court, which applies to ordinary civil cases, is subject to the special rules set out in EDR laws (Karanja Kabage v Joseph Kiuna Kariambegu Ng’ang’a & 2 Others, Nairobi Civil Appeal No. 301 of 2013). 4.10.8 Generally, the costs of and incidental to an election petition follow the event (s 84 of the Elections Act, 2011; Godfrey Mwaki Kimathi & 2 Others v Jubilee Alliance Party & 3 Others, Nairobi High Court Petitions No. 102 and 145 of 2015; Joseph Amisi Omukanda v IEBC & 2 Others, Kisumu Civil Appeal No. 45 of 2013). This does not necessarily mean that the election court is obliged to make an order for costs against an unsuccessful petitioner. In fact, election courts often award costs to unsuccessful petitioners, especially where the evidence indicates that the election petition was triggered by failures on the part of the IEBC. 4.10.9 The rule that costs follow the event seeks to compensate the successful party for the trouble taken in prosecuting or defending legal proceedings rather than to penalise the losing party (Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai Estate of & 4 Others, Supreme Court Petition No. 4 of 2012; Godfrey Mwaki Kimathi & 2 Others v Jubilee Alliance Party & 3 Others, Nairobi High Court Petition No. 102 and 145 of 2015). Further, as earlier mentioned, although the costs of, and incidental to, an election petition generally follow the event, an election court may disallow costs to a person who would otherwise be entitled to an order for costs if that person has been vexatious or caused unnecessary expense in the case (Rule 30(2), Elections (Parliamentary and County Elections) Petitions Rules, 2017; George Mike Wanjohi v Steven Kariuki, Supreme Court Petition No. 2A of 2014). 4.10.10 Further, where an election court attributes the genesis of an electoral dispute to one or more of the parties to an election petition, it may order that party or parties to pay the costs of and incidental to the election petition (George Mike Wanjohi v Steven Kariuki, Supreme Court Petition No. 2A of 2014; Dr. Thuo Mathenge & Another v Nderitu Gachagua & 2 Others, Nyeri Court of Appeal Civil Appeal No. 29 of 2013; Abdinoor Adan Abdikarim v IEBC & Another, Garissa Petition Appeal No. 10 of 2013). 4.10.11 However, where proceedings are subsequently declared a nullity, no party can be deemed as a successful party, thus each party should bear its own costs. In setting this out, the Supreme Court, in the case of Martha Wangari Karua v IEBC & 3 Others, Petition No. 3 of 2019, the Supreme Court opined: We sympathise with the Petitioner who, without any fault of her own, has been locked out of the seat of justice. We also take note of the long time and the judicial processes BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION