Guiding principles applicable in the awarding of costs

Brief facts

The applicant filed an application to withdraw the appeal and all the parties consented to the withdrawal. The 11^th respondent was unable to agree on costs which led to parties being directed to file submissions limited to the question of whether costs should be paid to the 8^th respondent upon the withdrawal. The applicant submitted that the petition of appeal was withdrawn at the earliest opportunity and in good faith and any costs incurred thereafter were occasioned by the respondents demand for costs.

The applicant submitted that costs fell under the inherent powers of the court and that the issues raised in the appeal were constitutional in nature and a matter of public interest despite having filed it in his individual capacity thus he sought orders that each party to bear its own costs. The 8^th respondent contended that costs follow the event and that an order for withdrawal was subject to an order for costs to the respondent. The respondent further contended that the applicant filed the appeal in his personal capacity and that he stood to solely benefit from the outcome, hence he ought to shoulder the costs of the 8^th respondent;

Issues

1. What were the guiding principles applicable in awarding of costs?                                         
2. What was the nature of the principle that costs followed the event? 

Held

1. The court had inherent jurisdiction to make orders on costs, with section 21(2) of the Supreme Court Act and rule 3(5) of the Supreme Court Rules, 2020 being instructive on that. 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. 
2. 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.
3. Although there was eminent good sense in the basic rule of costs that costs followed the event, it was not an invariable rule and, indeed, the ultimate factor on award or non-award of costs was the judicial discretion. Therefore, costs did not, in law, constitute an unchanging consequence of legal proceedings.
4. From the record, the petition was withdrawn before the respondents had filed any responses or substantive submissions to the appeal save for the 7^th respondent who filed a notice of preliminary objection. The appeal, at the time of withdrawal was not ripe for hearing. While applying the principle that costs normally followed the event, the event to which costs would follow had not materialized. The applicants appeal did not proceed as the occurrence of the event that would have led to the applicant being successful crystallized as the 11^th respondent was sworn in as Governor of Nairobi County. 

Adverse possession was not a subject matter meriting certification for an appeal to the Supreme Court as a matter of general public importance.

Brief facts

The applicants sought for the Supreme Court to review the Court of Appeals decision declining to grant certification of leave against its judgment. The subject matter of the case was adverse possession. The main grievance by the applicants was that the Court of Appeal in its judgment ignored crucial evidence and facts on record thereby arriving at a decision that would amount to conflicting principles of adverse possession

Issues

Whether adverse possession was a subject matter meriting certification for an appeal to the Supreme Court as a matter of general public importance

Held

1. The application that sought leave to file the application excluding the certified copies of the judgment and ruling of the Court of Appeal was not necessary as there was no provision under the Supreme Court Act or the Supreme Court Rules, 2020 that mandated the inclusion of such documents in an application to review the Court of Appeals decision declining to grant certification of leave. Rule 40 of the Supreme Court Rules provided for the contents of a record of appeal from the Court of Appeal under which the Court could on application of any party direct certain documents to be excluded from the record.
2. The applicants had fallen short of making any arguments beyond the specific evidence to demonstrate how the questions framed as involving general public importance transcended the instant litigation. Their argument was replete with how the superior courts ignored certain evidence.
3. The Supreme Courts jurisdiction under article 163(4)(b) of the Constitution went beyond resolving factual contestations as between the parties. In any event, the principles of adverse possession were settled and the applicants had not demonstrated any inconsistency of findings by the Court of Appeal on the doctrine.
4. The Supreme Court was not convinced that there was any miscarriage of justice or violation of any constitutional provisions as alleged by the applicants or at all. The applicants were merely in disagreement with the ultimate court determination and that did not suffice to invoke the Supreme Courts jurisdiction or amount to a miscarriage of justice. The applicants failed to exhibit that they met the threshold for certification of the intended appeal as raised a matter of general public importance.

The Supreme Court cannot grant an order of stay of proceedings pending hearing in the Magistrates Court

Brief facts

The applicants filed the instant application praying that pending the hearing and determination of Petition No. 4 of 2022, a conservatory order be granted staying the criminal proceedings in Nairobi Chief Magistrates Criminal Case No. 1735 of 2016 Republic v Edwin Harold Dayan Dande & 3 Others. The applicants submitted that; the court had jurisdiction to grant interlocutory reliefs pending the hearing and determination of the appeal; they had an arguable case with a high probability of success; the 1^st respondent, in abuse of his prosecutorial powers had instituted charges against them contrary to article 157 of the Constitution of Kenya, 2010 (Constitution); and that unless the criminal proceedings before the subordinate court were stayed, the intended appeal would be rendered nugatory.

Issues

1. Whether the Supreme Court could grant an order of stay of proceedings pending hearing in the Magistrates Court. 
2. What was the distinction between the Supreme Courts and the Court of Appeals jurisdiction to grant interlocutory orders of stay in criminal proceedings? 
3. What were the circumstances in which an order for stay could be issued? 
4. What was the nature of an arguable appeal? 
5. What was the effect of failure to file responses to an application within timelines issued by a deputy registrar during pre-trial?

Held

1. At the Court of Appeal, the applicants only challenged the exercise of prosecutorial powers of the 1^st respondent under article 157 of the Constitution. Being that the appeal before the Court of Appeal and its determination dealt squarely with the interpretation of article 157, the appeal was properly before the court in terms of article 163(4)(a) of the Constitution. 

2. The courts jurisdiction to grant interlocutory orders of stay of proceedings was derived from section 21(2) of the Supreme Court Act which provided that in any proceedings, the Supreme Court could make any ancillary or interlocutory orders, including any orders as to costs that it thought fit to award. Rule 5(2)(a) of the Court of Appeal Rules provided that the consideration was that the applicant could only apply for stay of criminal proceedings upon conviction and sentence either by the subordinate court, or by the High Court. 

3. An order for stay of criminal proceedings was not granted as a matter of course but upon the sparing exercise of judicial discretion and only in the most exceptional of circumstances. 

4. An order of stay would be granted in the following instances; 

1. the appeal or intended appeal was arguable and not frivolous;
2. unless the order of stay sought was granted, the appeal or intended appeal, were it eventually to succeed, would be rendered nugatory; and
3. it was in the public interest that the order of stay be granted.

5. An arguable appeal was not one that had to necessarily succeed, but was simply one that was deserving of the courts consideration; what had to be avoided was to render the appeal, if successful, nugatory or an academic exercise. The court, in exercising its discretion, balanced between the lower and the higher risks of injustice and no definitive conclusions ought to be made as that could only be in the appeal and not in an application for stay. 

6. Under article 163(4) of the Constitution and sections 15, 16 and 17 of the Supreme Court Act, only an appeal from the Court of Appeal could be entertained by the Supreme Court, as of right, if it involved the interpretation or application of the Constitution or where it was certified that a matter of general public importance was involved. 

7. It was fairly elementary that the court could only grant an order of stay of a decree or order of the Court of Appeal or stay of further proceedings in the Court of Appeal but not of proceedings pending hearing in the Magistrates Court, as sought in the instant application. Reference to any other court or tribunal as prescribed by national legislation in article 163(3)(b)(ii) was definitely not reference to the Magistrates Court. 

8. The petition filed by the applicants on March 11, 2022 only challenged the decision of the Court of Appeal and not that of the Magistrates Court. As a matter of fact, no decision was made by the latter to warrant any challenge in the High Court. 

9. Pre-trial directions in the instant matter were issued by the Deputy Registrar on March 11, 2022, therein, the respondent was to be served with the application and was in turn to file a response within 7 days. Unfortunately, parties in defiance of the directions, and after being issued with the ruling notice on May 4, 2022, continued to file responses up to the eleventh hour including as late as May 11, 2022. That practice was irregular and unacceptable. The court did not take into consideration in the instant ruling, submissions irregularly filed.