The extent to which the Court of Appeal has jurisdiction in appeals from the High Court on the setting aside of an arbitral award under section 35 of the Arbitration Act.

Geo Chem Middle East v Kenya Bureau of Standards [2020] eKLR

Petition 47 of 2019

Supreme Court of Kenya

PM Mwilu, DCJ &VP, MK Ibrahim, SC Wanjala, Njoki Ndungu & I Lenaola, SCJJ

December 18, 2020

Reported by Beryl Ikamari

Jurisdiction - jurisdiction of the Supreme Court - appellate jurisdiction of the Supreme Court - matters of constitutional interpretation and application - whether the Supreme Court could determine whether the Court of Appeal had jurisdiction to hear and determine an appeal from a High Court decision on the setting aside of an arbitral award under section 35 of the Arbitration Act - Constitution of Kenya 2010, article 163(4)(a).

Jurisdiction - jurisdiction of the Court of Appeal - arbitration matters - the extent to which the Court of Appeal had jurisdiction to hear and determine an appeal from a High Court decision on the setting aside of an arbitral award under section 35 of the Arbitration Act.

Brief facts

The petitioner and the respondent entered into a three years’ contract wherein the petitioner was to provide qualitative and quantitative inspection and testing services of imported petroleum products. The contract could be renewed for a further three years upon expiry. The petitioner alleged that it established a petroleum inspection facility at the Port of Mombasa and despite providing inspection services, the petitioner did not receive payments from marketers.

In a letter dated February 24, 2010, the Kenya Revenue Authority confirmed that it had been appointed to collect inspection fees from marketers on behalf of the respondent. Later, on October 23, 2012, it was acknowledged that the Kenya Revenue Authority had collected the fees and remitted them to the National Treasury. The Permanent Secretary for Industrialization requested the National Treasury to remit that money to the respondent as money due to the petitioner for services rendered. However, the petitioner did not receive the money.

On March 26, 2012, the respondent informed the petitioner that the Government had suspended the contract. The contract for provision of petroleum inspection services provided for a six months' termination notice or for a 14 days' notice for terminations occurring due to a force majeure event. The petitioner filed a claim for the outstanding fees for its services. The matter was referred to arbitration.

The arbitral tribunal made the finding that the suspension of the contract did not constitute termination of the contract as envisaged under the contract and that it was an unlawful termination. The tribunal awarded the petitioner the sum of USD 8, 591, 139/- in respect of the remaining contract period of twenty-nine (29) months as well as USD 3,687,437.21 inclusive of interest and Valued Added Tax for services rendered, and upon deduction of royalties due and owing.

Proceedings for the recognition and enforcement of the arbitral award were instituted by the petitioner at the High Court. On the other hand, the respondent applied for the setting aside of the arbitral award on grounds that the arbitral award contained decisions that went beyond the scope of the reference to arbitration.

The High Court made the finding that an arbitral award could only be set aside on grounds contemplated under section 35 of the Arbitration Act. The High Court stated that it would therefore decline the invitation to ascertain if there were contradictions in various aspects in the decision of the arbitral tribunal. The High Court found that there was no basis to set aside the award and allowed the application for recognition and enforcement.

The respondent subsequently filed an appeal at the Court of Appeal which raised three issues. One was about whether the court had the jurisdiction necessary to handle an appeal from the High Court on the setting aside of an arbitral award and the others were on whether the arbitral tribunal had jurisdiction and whether the arbitral award went against public policy.

The Court of Appeal made the finding that the reference to arbitration and the constitution of the arbitral tribunal was done outside of the time limits provided for under the contract. It also found that the arbitral tribunal determined issues that were outside its scope and that the award which required a state corporation to pay funds in excess of 1 billion Kenya shillings went against public policy.

The appeal before the Supreme Court was based on whether the Court of Appeal had jurisdiction in relation to arbitration matters under section 35 of the Arbitration Act and the Court of Appeal's failure to adjudicate on the issue in its judgment. The respondent also raised a preliminary objection on the premise that the Supreme Court had no jurisdiction to entertain the matter under article 163(4).

Issues

1. Whether the Supreme Court had jurisdiction to hear and determine a matter which was about the Court of Appeal’s jurisdiction on appeals arising from High Court determinations on the setting aside of an arbitral award under section 35 of the Arbitration Act.
2. To what extent did the Court of Appeal have jurisdiction to hear and determine appeals arising from High Court determinations on the setting aside of an arbitral award under section 35 of the Arbitration Act?

Held

1. To determine whether the Supreme Court had jurisdiction to hear and determine the dispute under article 163(4)(a), it was necessary to evaluate whether the contested issues were issues of constitutional controversy that had been determined at the High Court and later at the Court of Appeal. The petitioner raised an issue at the Court of Appeal about whether that court had jurisdiction to hear and determine an appeal from a High Court decision with respect to the award of an arbitral tribunal.
2. The issue about the Court of Appeal's jurisdiction was raised in the petitioner's submissions during the Court of Appeal hearing. However, it mattered not when an objection to jurisdiction was raised because jurisdiction was everything and without it a court would act but in vain.
3. An appeal could lie to the Court of Appeal from a High Court decision under section 35 of the Arbitration Act where in setting aside an arbitral award, the High Court stepped outside the grounds stated in section 35 of the Arbitration Act and made a decision so manifestly wrong and which had completely closed the door of justice to either of the parties.
4. The only issue that properly arose for the determination of the Supreme Court under article 163(4)(a), after a reading of the judgments of the High Court and the Court of Appeal was the issue of whether the Court of Appeal had jurisdiction to hear and determined an appeal from a High Court decision made under section 35 of the Arbitration Act.
5. Arbitration was meant to expeditiously resolve commercial and other disputes where parties had submitted themselves to that dispute resolution mechanism. The role of courts was greatly diminished notwithstanding the narrow window created by sections 35 and 39 of the Arbitration Act.
6. The High Court declined to exercise jurisdiction to interfere with the arbitral award. Therefore, the only question before the Court of Appeal ought to have been whether the High Court had properly declined to exercise jurisdiction under section 35 of the Arbitration Act.
7. The Court of Appeal made the determination that leave for the appeal had been granted and that leave had not been the subject of appeal. In granting leave, the question of jurisdiction of the Court of Appeal was determined and it was said that section 35 of the Arbitration Act did not expressly provide for a chance to appeal to the Court of Appeal but that did not bar a party from seeking redress at the Court of Appeal. The finding suggested that the chance to lodge an appeal at the Court of Appeal was open-ended and it did not tarry with the position of the Supreme Court. Such appeals, according to the Supreme Court were only permissible in a narrow sense. The Supreme Court's position about that was that an appeal to the Court of Appeal on a determination made by the High Court under section 35 of the Arbitration Act was permissible where in setting aside an arbitral award, the High Court stepped outside the grounds set out in the said section 35 and made a decision so grave, so manifestly wrong and which completely closed the door of justice to either of the parties.
8. Leave to appeal, whether wrongfully or rightfully granted, empowered the Court of Appeal to determined whether the High Court ought to have interrogated the arbitration award or not. If it were to determine that the High Court had wrongly declined jurisdiction to so do, the proper and indeed only course of action open to the Court of Appeal, was to remit the matter back to the High Court with directions for the latter to hear the substantive application for setting aside the arbitral award on its merits. Instead, the Court of Appeal stepped into the shoes of the High Court and proceeded to determine a matter that had not been substantively decided by the latter. In so doing, the Appellate Court usurped the jurisdiction of the High Court, as it was not open to it, to take over an arbitration dispute and determined it on its merits when the High Court had not done so.
9. To the extent that the judgment of the Court of Appeal purported to interrogate the merits of an arbitral award, in the absence of the High Court’s pronouncement on the same, the judgment was rendered in excess of jurisdiction. The Court of Appeal prematurely, and in excess of its jurisdiction, sat on an appeal that was not ripe, instead of remitting the same to the High Court for determination.

Orders:-

1. Appeal allowed and the judgment of the Court of Appeal dated November 22, 2019 was set aside.
2. Each party was to bear its costs.

Cases

East Africa

1.    Macharia, & another v Kenya Commercial Bank limited & 2 others [2012] 3 KLR 199 - (Followed)

2.     Nduttu & 6000 others v Kenya Breweries Ltd & 2 others [2012]  2 KLR 804 –(Followed)

3.    Nyutu Agrovet Limited v Airtel Networks Kenya Ltd & another  Petition No12 of 2016; [2019] – (Followed)

4.     Synergy Industrial Credit Limited v Cape Holdings Limited Petition No 2 of 2017; [2019] eKLR)- (Followed)

Statutes

East Africa

1. Constitution of Kenya, 2010 articles 25(c); 50(1); 159(2)(c)(e); 163(4)(a) – (Interpreted)

2. Supreme Court Act, 2011 (Act No 7 of 2011) section 15(2) –(Interpreted)

3. Supreme Court Rules, 2012 (repealed) (Act No 7 of 2011 Sub Leg) rules 9(1); 33(2) –(Interpreted)

4. Arbitration Act (cap 49) sections 10, 17(5);35(2)(iv);36(1) –(Interpreted)

International instrument

1. United Nation Commission on International Trade Law, (UNCITRAL) Model Law  (1985) article 5

Advocates

1. Mr Ngatia for the Petitioner

The investigatory and enforcement mandates of the Capital Markets Authority were constitutional despite being held by the same institution.

Alnashir Popat & 7 others v Capital Markets Authority [2020] eKLR

Constitutional Petition No. 29 of 2019

Supreme Court of Kenya

DK Maraga, CJ & P, MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

December 11, 2020

Reported by Beryl Ikamari & George Kariuki

Constitutional Law – Bill of Rights – right to fair administrative action – right to a fair hearing – whether a tribunal could act as both investigator and judge in its own case –  whether the investigatory and enforcement mandate of the Capital Markets Authority were constitutional - Constitution of Kenya 2010, articles 25(C), 35, 47(1) and 50(1); Capital Markets Act (cap 485A), section 11(3)(cc) and 11(3)(h)

Administrative Law – natural justice – impartiality of the decision-maker – legality of the Capital Markets Authority’s investigatory and enforcement – whether actual bias or an appearance of bias was the likely result of having the Capital Markets Authority serve as an investigator and an enforcer in the cases of infractions of the provisions of the Capital Markets Act and the regulations made thereunder.

Brief facts

The petitioners in this case were non-executive directors of Imperial Bank Limited (the bank) which had been put under receivership. The respondent, a statutory regulatory authority established under section 5 of the Capital Markets Act and charged with promoting, regulating and facilitating the development of orderly, fair and efficient capital markets in Kenya.

In August 2015, the respondent approved the bank’s application to issue to the general public a corporate bond of Kshs. 2 Billion. Only the bank’s Managing Director and the Chief Finance Officer were privy to that application.

In September 2015, the managing director passed on and the former head of credit was appointed acting MD and deputized the former CFO. In September, the two caught wind of an array of illegal transactions authorized by the late Managing Director and reported the same to the chair of the non- executive directors. The latter in turn contracted FTI consulting group, to carry out a forensic audit of the bank’s financial affairs and report on its accurate financial position. It also resolved not to utilize the approved bond issue pending the outcome of the investigations by the consultant.

It was found that the former MD had indeed been running a scheme of fraudulent disbursements resulting in losses running into billions of shillings and the board reported the same to Central Bank (CBK) who in turn placed the bank under receivership and appointed the Kenya Deposit Insurance Corporation its Receiver/Manager for a period of twelve (12) months. The appointment also included a declaration of a moratorium on the bank. On the same day, the respondent, on its part, instructed the Nairobi Stock Exchange (NSE) not to proceed with the listing of the bank’s bond issue on the Fixed Income Securities Market Segment until further notice.

Circumstances surrounding the issuance of the bond were brought to the fore by the respondent. In exercise of its statutory authority, it served the petitioners with notices to show cause and required them to respond, within 14 days, to allegations of negligence in the discharge of their mandate as directors of the bank. No hearing took place on the designated day. However, the respondent-appellants claimed that an inquisitorial hearing presided by CMA’s chair took place and a summary ruling entered against the bank’s directors.

The petitioners appealed against that decision at the High Court citing conflict of interest. They said that the CMA had acted as licensee, investigator and judge in the issue of the bond. Additionally, they contended that the authority had acted as juror in its own case. The same officials who had greenlighted the issuance of the bond had gone ahead to rule against its regularity and legality.

At the High Court, the notices sent to the petitioners to show cause were quashed. The court’s reasoning was that there existed a real possibility of bias. By acting in both inquisitorial and enforcement mandate, the authority was likely to be biased. It therefore ought to have delegated its functions to an independent body.

At the Court of Appeal, the authority’s decision was upheld. The Capital Markets Act expressly authorized the overlapping inquisitorial and enforcement functions of the respondent. Therefore, the respondent was expected to make unprejudiced judgement on matters it had investigated.

As a last resort, the appellants called upon the Supreme Court to consider the propriety of the dual statutory mandate granted to the respondent as the sole investigator and enforcer of capital markets infractions in Kenya.

Issues

1. Whether the overlapping investigatory and enforcement roles that the Capital Markets Act vested in the Capital Markets Authority constituted a violation of the rights to fair administrative action and fair hearing as recognized in articles 47(1) and 50(1) (as read with article 25(c)) of the Constitution.
2. Whether section 11(3) (cc) and 11(3)(h) of the Capital Markets Act which authorized the overlapping investigatory and enforcement mandate of the Capital Markets Authority was unconstitutional.
3. Whether the Capital Markets Authority’s attempted enforcement proceedings after conduct of its investigatory role with respect to a bank were biased or likely to be biased against the bank.

Held:

1.    Prior to the enactment of the Capital Markets Act, the capital market in Kenya faced multiple challenges running from illicit intermediaries to lack of a proper legislative guide hence the need for a firm regulatory regime.  Sections 5 and 11(cc) of the Capital Markets Act established the Capital Markets Authority with a mandate to remove impediments, promote wider performance of the general public in the securities commodities market and derivatives and for protection of investor interests. To achieve the objectives, section 13 of the Capital Markets Act granted the authority power to discipline errant members and to regulate and facilitate the development of an orderly, fair and efficient capital market.

2.    The Capital Markets Authority power to inquire, either on its own motion or at the request of any other person, into the affairs of any person which the authority had approved or to which it had granted a license and any public company the securities of which were publicly offered or traded on an approved securities exchange or on an over the counter market.

3.    Tenets of natural justice decreed that, no person should be allowed to be a judge in his or her own cause or in a cause they had an interest in the outcome including situations where one desired or was keen on obtaining a given result. A prosecutor, for example, had an interest in the conviction of a suspect he hauled into court.

4.    There were exceptions to every general rule. The exception to the tenets of natural justice set out under article 25(c) as read with article 47  of the Constitution was enunciated in the Canadian case of Re W. D. Latimer Co. and Attorney-General for Ontario (1973), 2 O.R. (2d) 391 and affirmed in Re W. D. Latimer Co. and Bray (1974).

5.    Where a statute authorized a tribunal to perform tripartite functions, disqualification on the ground of bias ought to have been founded upon some act of the tribunal going beyond the performance of the duties imposed upon it by the enactment pursuant to which investigations were being conducted.

6.    Mere advance information as to the nature of the complaint and the grounds for it was not sufficient to disqualify a tribunal from completing its task.

7.    Where it was clear from an empowering legislation that certain activities which would otherwise be considered "biased" formed an integral part of its operations and the tribunal had not acted outside its statutory authority, the doctrine of "reasonable apprehension of bias" could not be sustained. A tribunal’s structure and responsibilities as well as the manner of the discharge of its mandate ought to be considered.

8. Administrative tribunals were not necessarily supposed to operate like courts of law. That was why they were allowed to be masters of their own procedure albeit having to act fairly as set out in Selvara Jan v. Race Relations Board [1976] 1 ALL ER 12.

9.    For purposes of efficiency and in the carrying out of the objectives of the Capital Markets Act, especially in the expeditious disposal of disputes that arose in the operations of the capital markets, the functions set out in section 11(3) (cc) and 11(3)(h) could not be performed by separate bodies.

10. Section 11(3)(cc) and 11(3)(h) of the Capital Markets Act were not unconstitutional. The overlapping mandate did not render those sections unconstitutional. What would have been unconstitutional would have been the discharge of that dual mandate.

11.  It was important to determine whether the authority’s discharge of a dual mandate in the petitioner’s case was itself likely to be unconstitutional under a critical balancing of articles 47(1) and 50(1).

12.  Among the canons of statutory interpretation was that the historical background of legislation ought to be considered. However, in the promotion of public policy and efficient administration of the securities market in Kenya, the right to a fair administrative action could not be sacrificed at the altar of efficiency or public interest.

13.  Individual rights to be duly notified of a hearing, given adequate prior information and to be granted a fair hearing were so fundamental that they could not be limited by public interest.

14. The Capital Markets Authority could not be allowed to ride roughshod over the non-derogable constitutional rights of investors. It would be counterproductive by scaring away the very prospective investors it sought to entice. 

15. Narrow interests such as fostering investor confidence in the securities market could not be used as an excuse to deprive the directors of their constitutional right to a fair hearing of the allegations against them.

16. Despite the legality of the duality of the respondent’s mandate under section 11(3) (cc) (h) of the Capital Markets Act, in any matter that could be classified as judicial or quasi-judicial, or one where, in the view of a reasonable man conversant with the matter, there was likely to be bias or a reasonable apprehension of bias, the authority ought to have been impartial.

17.  A reasonable apprehension of bias was the key test in determining whether a tribunal had acted impartially. A tribunal was required to observe and accord persons under investigations (and or any person) likely to be adversely affected by their decision a fair process and in particular, it was required to adhere to the principles of natural justice and comply with the provisions of articles 50 (1) and 47 of the Constitution.

18.  Enforcement proceedings were not necessarily administrative merely because the enforcement body was an administrative one. Focus of the enquiry was not whether a particular conduct was an ‘administrative action’, but on the nature of the power being exercised.

19.  An act would be judicial when there was opportunity to be heard and for production and weighing of evidence and a decision was rendered.

20. In the discharge of their statutory mandates, tribunals ought to always first determine whether or not their acts or decisions were judicial or quasi-judicial and whether or not they were likely to adversely affect the rights of persons or bodies under investigation.

21.  The nature of the enforcement proceedings that the authority sought to enforce against the directors for non-appearance bespoke a quasi-judicial process because, based on the material evidence placed before it, the Capital Markets Authority would have had to determine the culpability or otherwise of the directors.

22. Had the directors been found culpable pursuant to section 11(3) (cc) of the Capital Markets Act, the authority would have imposed sanctions on them, including financial penalties.

23.  There was a real possibility of bias in the petitioners’ case. The authority had appraised and approved the bank’s application. The same authority also initiated and conducted preliminary investigations into the bank’s conduct in relation to the application and upon satisfying itself that the bank could have have violated the relevant provisions of the Act and the Regulations, it made a decision to charge the petitioners and went ahead to formulate the requisite charges. It was the same Board of the Capital Markets Authority that also purported to preside over the hearing of the director’s cases. That obviously led to an inescapable appearance of partiality on the Authority’s part.

Orders: -

1. The petitioners’ appeal was allowed to the extent that the respondent would proceed with the enforcement proceedings against the petitioners through its delegated authority under section 11A (1) and/or section 14(1) of the Capital Markets Act.
2. Each party was ordered to bear its own costs.

The Supreme Court has no jurisdiction to hear and determine appeals against the interlocutory decisions of the Court of Appeal.

Clement Kungu Waibara v Annie Wanjiku Kibeh & another [2020] eKLR

Civil Application No 31 of 2020

Supreme Court of Kenya

PM Mwilu, MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

December 4, 2020

Reported by Beryl Ikamari

Jurisdiction - jurisdiction of the Supreme Court - appellate jurisdiction - whether the Supreme Court had jurisdiction to hear and determine an appeal arising from an interlocutory decision of the Court of Appeal.

Brief facts

The High Court in H. C. Petition No. 21 of 2020 declared a vacancy in the seat of Member of Parliament for Gatundu North Constituency. An application for a stay of execution of the High Court's decision made by the 1^st respondent was granted on October 28, 2020. The applicant filed a notice of motion seeking leave to institute a Supreme Court appeal against the Court of Appeal decision. The 1^st respondent, in response, filed a notice of preliminary objection whose gist was that the Supreme Court lacked jurisdiction to entertain the application whish arose out of an interlocutory decision of the Court of Appeal and that the court also lacked jurisdiction over decisions that arose from the exercise of discretion by the Court of Appeal under rule 5 (2)(b) of the Court of Appeal Rules, 2010.

Issue

Whether the Supreme Court had jurisdiction to hear and determine an appeal arising from an interlocutory decision of the Court of Appeal.

Held

1. Without a judgment of the Court of Appeal which would create finality to the contested issues and also point the party to the specific limb of article 163(4) of the Constitution on which to invoke the court's jurisdiction, the jurisdiction of the court could not be invoked properly.
2. The invitation to assume jurisdiction over the matter was misguided.

Application struck out. Applicant to pay the attendant costs.

Factors to consider when exercising judicial discretion to extend time for filing an application for review to the Supreme Court

Sammy Mwangangi & 10 others v Commissioner of Lands & 3 others [2020] eKLR

Civil Application No. 21 of 2020

Supreme Court of Kenya

PM Mwilu, DCJ & VP; MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

October 9, 2020

Reported by Kakai Toili

Civil Practice and Procedure – extension of time – application for extension of time within which to file an application for review to the Supreme Court – factors to consider when exercising judicial discretion to extend the time for filing the application - whether issues raised in an intended application for review could be determined in an application for enlargement of time to file the intended application - Supreme Court Act, 2012, section 26 and 53.

Brief facts

The applicants filed the instant application seeking enlargement of time to file an application for review of the ruling of the Court of Appeal. The applicants contended that the delay in filing the application for review to the instant court was inadvertent, and was occasioned by delay in the assessment of filing fees and uploading of documents on the court’s e-filing portal. The 3^rd and 4^th respondents in opposing the application submitted that no purpose would be served by the extension as the matter they sought to pursue was not a matter of general public importance, but was one seeking to enforce private rights.

Issues

1. What were the factors to be considered when exercising judicial discretion to enlarge the time for filing an application for review to the Supreme Court?
2. Whether issues raised in an intended application for review could be determined in an application for enlargement of time to file the intended application.

Held

1. Grant or refusal of extension of time was a matter of judicial discretion to be exercised, not subjectively or at whim or by rigid rule of thumb, but in a principled manner in accordance with reason and justice. The applicants had explained, cogently and reasonably, that the delay in filing their application for review of the Court of Appeal’s decision denying them timeous access to the court was not of their own making. The delay of six days was in any event not inordinate and there was no prejudice caused to the respondents, especially the 3^rd and 4^th respondents.
2. The question whether the applicants had established that the issues in contest were of general public importance was a matter that could not be determined in the instant application, it being the gravamen of the intended review application under article 163(5) of the Constitution.
3. Prayer 3 of the motion under consideration seeking orders that the originating motion dated July 22, 2020 under Reference No.SC APP;/E007/2020 be deemed as dully filed was not one for granting in the instant instance. It was best that a proper motion for review under the Constitution, the Supreme Court Act and Rules be filed pursuant to the orders granted.

Application allowed; each party to bear its costs of the application.

Orders:

1. The time within which to file the application for review of the ruling of the Court of Appeal dated July 10, 2020 was enlarged and the same was to be filed within 7 days of the ruling.
2. Directions were to be taken before the Deputy Registrar thereafter.

Factors to consider in awarding costs where a suit involved matters of public interest

Director of Public Prosecution v Michael Sistu Mwaura Kamau & 4 others [2020] eKLR

Petition of Appeal No. 18 of 2019

Supreme Court of Kenya

PM Mwilu DCJ & VP; MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

September 23, 2020

Reported by Kakai Toili

Civil Practice and Procedure – costs – awarding of costs – where parties had withdrawn a suit but failed to agree on costs – where the suit involved matters of public interest - what were the factors to consider in awarding costs.

Brief facts

In September 2019 the court recorded a consent order marking the instant petition as withdrawn. The parties were however unable to agree on costs and thus the court directed parties to file submissions limited to the question whether costs should be paid to the respondents consequent upon the withdrawal of the petition. The appellant, the Director of Public Prosecutions, argued that no order as regards costs should be made as the issue of costs was never raised at both the High Court and the Court of Appeal. The respondents, save the 3^rd, 4^th and 5^th respondents disagreed and submitted that costs had to follow the event even as it was a matter of discretion for the court.

Issue

What were the factors to consider in awarding costs where a suit involved matters of public interest?

Held

1. The award of costs would normally be guided by the principle that costs followed the event: the effect being that the party who called forth the event by instituting suit, would bear the costs if the suit failed; but if that party showed legitimate occasion, by successful suit, then the defendant or respondent would bear the costs. However, the vital factor in setting the preference was the judiciously-exercised discretion of the court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest would be a relevant factor, in the exercise of such discretion, as would also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation.
2. Although there was good sense in the basic rule of costs, that costs followed the event, it was not an invariable rule. The ultimate factor on award or non-award of costs was a judicial discretion. Therefore, costs did not, in law, constitute an unchanging consequence of legal proceedings.
3. The fact that the appellant was a public entity was not in itself a reason to deny an opposing but entitled party its costs in appropriate circumstance. Each case had to be looked at in its specific circumstances and costs awarded or denied at the complete discretion of the court.
4. Whereas the appellant had withdrawn the petition when it was ready for hearing and while the respondents had spent time and resources preparing for the hearing, the issues raised in the appeal were of great public interest, the extent of powers bestowed upon the Ethics and Anti-Corruption Commission and whether corruption related offences could be initiated when the Commission was not properly constituted and whether the President could direct the Commission or the Director of Public Prosecutions in the execution of their constitutional mandates. Those matters transcended the specific interests of the parties and had settled in the public sphere thus attracting the public interest. An order of costs against any party would in the circumstances not be fair.

Petition marked as withdrawn; each party to bear its costs of the appeal.