[2022] KESC 17 (KLR)

Sonko v Clerk, County Assembly of Nairobi City & 12 others (Petition 14 (E021) of 2021) [2022] KESC 17 (KLR) (19 May 2022) (Ruling)

Neutral citation: [2022] KESC 17 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Petition 14 (E021) of 2021

PM Mwilu, SC Wanjala, NS Ndungu, I Lenaola & W Ouko, SCJJ

May 19, 2022

Between

Mike Mbuvi Sonko

Applicant

and

Clerk, County Assembly of Nairobi City

1st Respondent

Speaker of Nairobi City County Assembly

2nd Respondent

City County Assembly

3rd Respondent

Nairobi City County Assembly

4th Respondent

Clerk of the Senate

5th Respondent

Speaker of the Senate of Kenya

6th Respondent

Senate of Kenya

7th Respondent

Attorney General

8th Respondent

Independent and Boundaries Commission (IEBC)

9th Respondent

Assumption of the Office of the County Governor Committee, Nairobi County

10th Respondent

Benson Mutura, Acting Governor Nairobi

11th Respondent

Ann Kanunu Mwenda, the Deputy Governor

12th Respondent

Okiya Okoiti Omtatah

13th Respondent

(Being an application by the applicant for withdrawal of the suit with no order as to costs)

The guiding principles applicable in awarding costs at the Supreme Court.

Reported by Kakai Toili

Civil Practice and Procedure– costs - awarding of costs at the Supreme Court - guiding principles applicable in awarding of costs – what was the nature of the principle that costs followed the event - Supreme Court Act, 2011, section 21(2); Supreme Court Rules, 2020, rule 3(5).

Brief facts The applicant filed an application to withdraw the appeal and all the parties consented to the withdrawal. The 11th 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 8th 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 The applicant submitted that the petition of appeal was withdrawn at the earliest opportunity and in good faith and any costs incurred thereafter were occasioned by the respondents’ demand for costs.The applicant submitted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 bears its own costs. The 8th 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 8th respondent;

Issues

What were the guiding principles applicable in awarding of costs?

What was the nature of the principle that costs followed the event?

Held

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.

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 the ends of justice. The claims of the public interest would be a relevant factor, in the exercise of such discretion, as would also the motivations and conduct of the parties, prior to, during, and subsequent to the actual process of litigation.

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.

From the record, the petition was withdrawn before the respondents had filed any responses or substantive submissions to the appeal save for the 7th 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 applicant’s appeal did not proceed as the occurrence of the event that would have led to the applicant being successful crystallized as the 11th respondent was sworn in as Governor of Nairobi County.

Application allowed.

Orders Each party to bear its costs of the appeal.

Citations Cases Council of Governors v. Senate & Another ([2014] eKLR) — Mentioned

In the Matter of the Council of Governors; Senate & another (Interested Parties) (Reference No 1 of 2014; [2014] eKLR) — Explained

Jasbir Singh Rai & 3 others vTarlochan Singh Rai & 4 others (Sup. Ct. Petition No. 4 of 2012; [2014] eKLR) — Explained

Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, Sup. Ct. Petition No. 4 of 2012 ([2014] eKLR) — Mentioned

Odinga, Raila & 5 others v Independent Electoral & Boundaries Commission & 3 others (Petition No 5, 4 & 3 of 2013 (Consolidated); [2013] eKLR) — Explained

Statutes Supreme Court Act (No 7 of 2011) — section 21(2) — Interpreted

Supreme Court Rules, 2020 (No 7 of 2011 Sub Leg) — Rule 3(5), 27

AdvocatesNone mentioned

Ruling

1. Upon considering the application by the applicant to withdraw the appeal on December 10, 2021 when the matter was mentioned before the Deputy Registrar (Hon Ole Keiwua) with all parties consenting to the withdrawal and;

2. Upon noting that that the 11th respondent was unable to agree on costs with the learned Magistrate directing parties to file submissions limited to the question of whether costs should be paid to the 8th respondent upon the aforesaid withdrawal; and

3. Upon perusing the applicant’s submissions dated December 22, 2021and filed on March 14, 2022 wherein he submits 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; and

4. Uponconsidering further arguments by the applicant that section 21(2) of the Supreme Court Act and rule 3(5) of the Supreme Court Rules, 2020 provide that costs fall under the inherent powers of the court as was held in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, Sup Ct Petition No 4 of 2012; [2014] eKLR (Jasbir Singh Rai case) and further arguing that the issues raised in the appeal were constitutional in nature and a matter of public interest despite the applicant having filed his appeal in his individual capacity by relying on this court’s finding in Raila Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others, Sup. Ct. Petition Nos 3, 4 & 5 of 2013; [2013] eKLR persuading the court to order each party to bear its own costs and;

5. Further considering the submissions by the 8th respondent dated and filed on December 17, 2021that the application for withdrawal of the appeal is not opposed but nevertheless contending that under section 21(2) of the Supreme Court Act and rule 27 of the Supreme Court Rules, costs follow the event and that an order for withdrawal is subject to an order for costs to the respondent as was the finding by this court in Council of Governors v Senate & another, Reference No 1 of 2014; [2014] eKLR (Council of Governorscase); and

6. Furthermore, noting the respondent’s further opposition to the applicant’s submission that the appeal is a matter of public interest arguing that the applicant filed the appeal in his personal capacity and that the applicant stood to solely benefit from the outcome, hence the applicant ought to shoulder the costs of the 8th respondent;

7. We now opine as follows:i.This court has 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 this.ii.The guiding principles applicable in costs were as stated in Jasbir Singh Rai where we stated that costs follow the event with the discretion of the court exercised judiciously by stating:“[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….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.”iii.Having so stated, we note from the record that the petition was withdrawn before the respondents had filed any responses or substantive submissions to the appeal save for the 7th respondent who filed a notice of preliminary objection. The appeal, at the time of withdrawal was not ripe for hearing. While applying the principle in Jasbir Singh Rai that costs normally follow the event, has an event to which costs would follow materialized? The answer is in the negative. Such an event has not happened. We note that the applicant’s appeal did not proceed as the occurrence of the event that would have led to the applicant being successful crystallized as the 11th respondent was sworn in as Governor of Nairobi County. We therefore come to the conclusion that each party shall bear its costs before this court.

8. And having therefore considered the submissions by the respective parties, we now order that each party shall bear its costs of the appeal.

8. It is accordingly so ordered.

DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF MAY, 2022. ..…………........................................................P. M. MWILUDEPUTY CHIEF JUSTICE & VICEPRESIDENT OF THE SUPREME COURT……………………..…………..........................S. C. WANJALAJUSTICE OF THE SUPREME COURT…………………………………………….…….NJOKI NDUNGUJUSTICE OF THE SUPREME COURT…………………………………………….…….I. LENAOLAJUSTICE OF THE SUPREME COURT………………………………………………….W. OUKOJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRAR,SUPREME COURT OF KENYA