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 The applicant submitted that the petition of appeal was withdrawn at the earliest opportunity and in good faith and any costs incurred thereafter were occasioned by the respondents demand for costs.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. 

Supreme Court orders stay of the execution of orders 1, 3 and 9 of the in Civil Appeal No. E084/2021; National Assembly another & Senate of Kenya & others

Brief facts

The applicants filed the instant application seeking stay of execution of orders 1, 3 and 9 of the judgement of the Court of Appeal at Nairobi in Civil Appeal No. E084 of 2021, National Assembly & others v the Senate of Kenya & others pending hearing and determination of Supreme Court Petition No. 19(E027) of 2021, Senate of Kenya & others v National Assembly & others. The applicants submitted that unless the orders of stay were granted, the appeal would be rendered nugatory. The applicants argued that they had an arguable appeal to warrant the grant of stay orders.

Issues

Whether an order of stay of execution of orders of the decision by the Court of Appeal could issue in the circumstances.

Held

The SC Petition No. 19(E027) of 2021, which was already before the court was arguable and the instant application met the principles set out by the court in Board of Governors, Moi High School, Kabarak & another v Malcolm Bell, Petition Nos. 6 & 7 OF 2013; [2013] eKLR and Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC Application No. 5 of 2014; [2014] eKLR.