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Supreme CourtAllowedPetition 4 of 2012

Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others

Supreme Court of Kenya
4 March 2014
Willy MutungaW.M. MutungaKalpana RawalK.H. RawalPhilip Kiptoo TunoiP.K. TunoiMohammed Khadhar IbrahimM.K. IbrahimJackton Boma OjwangJ.B. OjwangSmokin Charles WanjalaS.C. WanjalaNjoki Susanna NdunguN.S. Ndungu
3,118 words in judgment
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The bottom line

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Supreme Court: you won't always pay costs even if you lose a case.

What this practically means

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The Supreme Court ruled that a party who loses a case may not have to pay the other side's costs. This happens when the loss was not the party's fault, but due to a later change in law. The Court has discretion to order each side to pay its own costs, especially in public interest cases. This protects people who bring genuine cases from being punished by a heavy costs order.

Executive summary

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This ruling by the Supreme Court of Kenya (full bench of seven judges) determined the question of costs following the Court's earlier Ruling of 20 August 2013, which had declined jurisdiction to entertain Petition No 4 of 2012. The Respondents in that petition (Applicants herein) moved the Court by Notice of Motion seeking that the petition be struck out and that costs be determined. The Petitioners/Respondents opposed the costs application, arguing that their petition was based on a legitimate cause of action under section 14 of the Supreme Court Act, 2011, which was later declared unconstitutional in an unrelated case (Samuel Kamau Macharia). The Court held that although the general rule is that costs follow the event, the Supreme Court has discretion under section 21(2) of the Supreme Court Act and Rule 3(5) of the Supreme Court Rules to depart from this rule for good reason. The Court found that the Petitioners' loss was not due to any fault on their part but was occasioned by a fortuitous event—the subsequent declaration of the statutory provision as unconstitutional. The Court also noted the public interest in resolving the jurisdictional issue and drew an analogy to the Presidential election petition where parties bore their own costs. Consequently, the Court ordered that the petition be struck out and that each party bear their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Petition should be struck out, its substratum having been determined by the Court's Ruling of 20 August 2013.
  2. 2.Whether the costs of the instant application should be determined by this Court.

Key legal issues

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Whether the Supreme Court should award costs to the successful party following the principle that costs follow the event, or whether the circumstances justify a departure from that rule.

Holding

The Court held that although the general rule is that costs follow the event, the Court has discretion to depart from this rule for good reason. In this case, the Petitioners' loss was not due to any fault on their part but because a provision of the Supreme Court Act was subsequently declared unconstitutional in an unrelated case. The public interest in resolving the constitutional discord and the Petitioners' legitimate right to access justice justified each party bearing their own costs.

Reasoning

The Court reasoned that the Petitioners had a valid cause of action when they filed the Petition, as section 14 of the Supreme Court Act was then extant. Their loss was occasioned by a fortuitous event—the declaration of that provision as unconstitutional in a later, unrelated case. The Court noted that the Petitioners had not abused court process and had a constitutional right to a fair hearing under Article 50(1). The Court also considered the public interest in having the jurisdictional issue resolved, drawing an analogy to the Presidential election petition where parties bore their own costs. The Court concluded that neither party was blameworthy and that the circumstances did not merit an award of costs.

p. 8

Legal principles established

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  • The Court has full discretion to decide who pays costs, not a fixed rule.
  • The 'costs follow the event' rule is not mandatory for the Supreme Court.
  • A party who loses due to a subsequent change in law should not be penalized with costs.
  • Public interest litigation protects litigants from costs if they act without private gain.
  • No party should face costs for exercising the constitutional right to a fair hearing.
  • Each party bears its own costs when neither is blameworthy for the outcome.

Court orders

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  1. 1.The Petition is hereby struck out, its substratum having been determined by this Court’s Ruling of 20 August 2013.
  2. 2.The parties shall bear their own respective costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Willy Mutunga
majority
Kalpana Rawal
majority
Philip Kiptoo Tunoi
majority
Mohammed Khadhar Ibrahim
majority
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
N.S. NdunguSCJ
Currently serving
majority
Jurisdiction invoked
Section 21(2) of the Supreme Court Act, 2011 and Rule 3(5) of the Supreme Court Rules, 2012

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Petition is hereby struck out, its substratum having been determined by this Court’s Ruling of 20 August 2013.
p. 9 Final orders - striking out of petition
The parties shall bear their own respective costs.
p. 9 Costs order
The law does not require the Supreme Court to adhere to the costs- follow-the-event principle.
p. 5 Discretion in awarding costs
It is plain to us that, at the time the Petition was lodged in the Supreme Court, it was, in every respect, a valid cause of action; and thus, no blame attaches to the act of filing.
p. 8 Validity of cause of action at time of filing
In matters concerning public-interest litigation, a litigant who has brought proceedings to advance a legitimate public interest and contributed to a proper understanding of the law in question without private gain should not be deterred from adopting a course that is beneficial to the public for fear of costs being imposed.
p. 7 Public interest litigation and costs

Key timeline

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2012
Petition No. 4 of 2012 filed under section 14 of the Supreme Court Act.
2013-08-20
Supreme Court rules it lacks jurisdiction to hear the Petition (substratum determined).
2013
Respondents apply for costs after losing the Petition.
2014-07-29
Supreme Court strikes out the Petition and orders each party to bear its own costs.

Practical implications

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For lawyers

Costs discretion is wide

When advising clients on Supreme Court litigation, note that costs are not automatic. Prepare clients for the possibility that even a win may not yield costs, especially if public interest is involved. Always argue for or against costs based on fault and public interest, not just the outcome.

For businesses

Strategic litigation risk reduced

If your business brings a case in the public interest or relies on a law later struck down, the Court may spare you from paying the other side's legal fees. This reduces the financial risk of challenging government action, but does not eliminate it—ensure your case is brought in good faith.

For individuals

Access to justice protected

You can challenge a law in the Supreme Court without fear that a later change in law will bankrupt you with costs. The Court will consider whether you acted in good faith and in the public interest. This ruling encourages Kenyans to seek constitutional justice even when the legal landscape shifts.

Frequently asked questions

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What does 'costs follow the event' mean in Kenya?+

It means the losing party usually pays the winner's legal costs. But the Supreme Court in this case said it has discretion not to follow that rule, especially when the loss was not the loser's fault or when the case involved public interest.

Can I be ordered to pay costs if I lose a case in Kenya?+

Yes, normally you can. But this ruling shows the Supreme Court may order each party to pay its own costs if your case was valid when filed and a later court ruling made you lose, or if your case was in the public interest.

Does the Supreme Court always follow the costs rule in Kenya?+

No. This case confirmed the Supreme Court has an open-ended mandate to decide costs based on justice, not just the rule that costs follow the event. It will consider factors like public interest and fault.

What is public interest litigation in Kenya?+

It is a case brought to benefit the public, not for private gain. The Supreme Court says such litigants should not be deterred by fear of costs. If you bring a genuine public interest case, you may avoid paying the other side's costs even if you lose.

Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others", Case Analysis (2014). Petition 4 of 2012. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2014/31/eng@2014-03-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.