[2020] KESC 14 (KLR)

Director of Public Prosecution v Kamau & 4 others (Petition 18 of 2019) [2020] KESC 14 (KLR) (Civ) (23 September 2020) (Ruling)

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

Neutral citation: [2020] KESC 14 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Civil

Petition 18 of 2019

PM Mwilu, DCJ & V-P, MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

September 23, 2020

Between

Director of Public Prosecution

Appellant

and

Michael Sistu Mwaura Kamau

1st Respondent

Ethics and Anti-Corruption Commission

2nd Respondent

Attorney General

3rd Respondent

Inspector General of the National Police

4th Respondent

Chief Magistrate’s Court, Milimani Anti-Corruption Court

5th Respondent

(Being an appeal against the Judgment and Orders of the Court of Appeal given on 14th Jul 2017 by Justices of Appeal Asike Makhandia, William Ouko, Kathurima M’inoti in Civil Appeal No.102 of 2016)

Ruling

1. On 26th September 2019, Ibrahim SCJ recorded a consent order marking the Petition herein as withdrawn. Parties were however unable to agree on costs and so the learned Judge directed parties to file submissions limited to the question whether costs should be paid to the Respondents consequent upon the withdrawal aforesaid.

2. All parties subsequently filed their submissions and digests of authorities which we have taken note of. Suffice it to say that the Appellant, the Director of Public Prosecutions, has made the point 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 and it is strange that it has now become a contested issue. The Respondents, save the 3rd, 4th and 5th disagree and submit that costs must follow the event even as it is a matter of discretion for the Court.

3. On our part, in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR, we stated as follows:“(18)It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference is 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 will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation.”

4. We further stated as follows:“… in the classic common law style, the Courts have to proceed on a case by case basis, to identity “good reasons” for such a departure. An examination of evolving practices on this question shows that, as an example, matters in the domain of public interest litigation tend to be exempted from award of costs …”

5. On discretion, we stated thus:“Although there is eminent good sense in the basic rule of costs – that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases.”

6. We reiterate the above holdings as properly applicable to the present case and would only add that the fact that the Appellant is a public entity is not in itself a reason to deny an opposing but entitled party its costs in appropriate circumstance – see Reference No.1 of 2014, Council of Governors v The Senate & 2 Others. Each case must be looked at in its specific circumstances and costs awarded or denied at the complete discretion of the Court.

7. Having so stated, we note that the initial proceedings at the High Court were commenced by the 1st Respondent challenging his arrest and arraignment in Court for certain criminal offences laid at the instance of the Appellant and the 2nd Respondent. In determining the matter, the High Court stated that, “as the issues raised herein were issues of great public interest not restricted to the Petitioners, we make no order as to costs”

8. The Court of Appeal on its part also exercised discretion and directed that each party ought to bear its own costs “on account of the public interest issues raised in the appeal”.

9. We have considered the rival submissions and are convinced that, whereas the Appellant has withdrawn the Petition when it was ready for hearing and while the Respondents have spent time and resources preparing for the hearing aforesaid, we must agree with both the High Court and the Court of Appeal that the issues raised in the Appeal were of great public interest – i.e. the extent of powers bestowed upon the Ethics and Anti-Corruption Commission and whether corruption related offences can be initiated when the said Commission was not properly constituted and whether the President of the Republic of Kenya can direct the Commission or the Director of Public Prosecutions in the execution of their constitutional mandates. These matters transcended the specific interests of the parties and have settled in the public sphere thus attracting the public interest. An order of costs against any party would, in the circumstances, not be fair.

10. In the event, we hereby exercise discretion and order as follows:i.The Petition of Appeal herein is marked as withdrawn.ii.Each Party shall bear its costs of the Appeal.

11. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 23RD DAY OF SEPTEMBER 2020. .................................P. M. MWILUDEPUTY CHIEF JUSTICE & VICE PRESIDENT OF THE SUPREME COURT..........................M. K. IBRAHIMJUSTICE OF THE SUPREME COURT..............................S. C. WANJALAJUSTICE OF THE SUPREME COURT...............................NJOKI NDUNGUJUSTICE OF THE SUPREME COURT.............................I. LENAOLAJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRAR,SUPREME COURT OF KENYA