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Supreme CourtAllowedPetition (Application) 2 (E002) of 2021

Okoiti & 2 others v Attorney General & 14 others

Supreme Court of Kenya
21 April 2023
Mohammed Khadhar IbrahimM.K. IbrahimSmokin Charles WanjalaS.C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. LenaolaWilliam OukoW. Ouko
1,882 words in judgment
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The bottom line

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Kenya’s Supreme Court: public interest groups generally shouldn’t pay costs in constitutional cases.

What this practically means

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The Supreme Court of Kenya ruled that Katiba Institute, a public interest group, should not have been ordered to pay costs after challenging the appointment of National Land Commission members. The court found that the single judge who imposed costs ignored the public interest nature of the case and that some respondents never even participated. The full bench set aside the costs order, saying courts must protect access to justice instead of penalising genuine litigants.

Executive summary

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This was an application by Katiba Institute (the applicant) seeking review of a single judge's (Mwilu DCJ & VP) ruling delivered on February 17, 2023, which had ordered the applicant to pay costs to the 1st, 2nd, 3rd, 13th, 14th, and 15th respondents. The applicant argued that the single judge erred in awarding costs without considering that the underlying litigation was a public interest matter concerning the appointment of members of the National Land Commission, and that the 13th and 14th respondents had not participated in the proceedings. The Supreme Court (a five-judge bench) allowed the application. The court held that it had jurisdiction under section 23(2C) of the Supreme Court Act to review a single judge's decision despite the finality clause in rule 6(3) of the Supreme Court Rules, where an injustice is apparent. The court found that awarding costs to the 13th and 14th respondents was erroneous as they had not participated meaningfully. Further, the court held that the public interest nature of the case was obvious, and the single judge erred in applying the 'costs follow the event' rule without considering this factor. The court set aside the costs order and directed that there be no order as to costs, emphasizing that in public interest constitutional litigation, the primary consideration should be promoting access to justice, not penalizing bona fide litigants.

Questions the Court framed

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

  1. 1.Whether the single judge exercised her discretion judiciously in finding that the applicant should bear the costs of the 1st, 2nd, 3rd, 13th, 14th and 15th respondents and that the said decision should be reviewed.

Key legal issues

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01

Whether the Supreme Court has jurisdiction to review a single judge's decision on costs despite the finality clause in rule 6(3) of the Supreme Court Rules, 2020.

Holding

The court has jurisdiction under section 23(2C) of the Supreme Court Act, 2011 to review a single judge's decision, and the finality clause in rule 6(3) does not bar such review where an injustice is apparent, especially on the narrow issue of costs.

Reasoning

The court considered section 23(2C) of the Supreme Court Act, which allows a party aggrieved by a single judge's decision to apply for review by five or more judges. It also considered rule 6(3) which provides that a single judge's determination on the Registrar's decision shall be final. The court reconciled these provisions by holding that the finality clause does not bar review where an injustice is apparent, relying on the principle from Parliamentary Service Commission v Martin Nyaga Wambora & others. The court found that awarding costs to non-participating respondents and failing to consider the public interest nature of the case constituted an apparent injustice, thus justifying review.

p. 6
02

Whether the single judge erred in awarding costs to the 13th and 14th respondents who did not participate in the proceedings.

Holding

The single judge erred in awarding costs to the 13th and 14th respondents because they did not participate in any meaningful way that would entitle them to costs.

Reasoning

The court observed that the 13th and 14th respondents, through their advocates, decided not to participate in the proceedings and left the matter entirely in the hands of the court. The court held that costs are not awarded to a party that has not spent time or resources in prosecuting or defending a matter, and the 'costs follow the event' principle would not apply in such circumstances.

p. 6
03

Whether the public interest nature of the underlying litigation should have exempted the applicant from an adverse costs order.

Holding

Yes, the public interest element in the case before the superior courts below was obvious, and the single judge erred in ordering costs to follow the event without considering this factor.

Reasoning

The court noted that the underlying matter concerned the appointment of members of the National Land Commission and whether the Constitution was followed, which is a public interest matter. The court also noted that the Court of Appeal had directed parties to bear their own costs. Relying on the Rai case and Biowatch Trust, the court held that in public interest constitutional litigation, the primary consideration should be promoting access to justice, and costs should not be used to penalize bona fide public interest litigants without evidence of bad faith.

p. 6

Legal principles established

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  • A larger bench of the Supreme Court can review a single judge’s costs order if an injustice is apparent, even if the rules say the decision is final.
  • No costs should be awarded to a party that did not actively participate in the proceedings.
  • In public interest constitutional litigation, promoting access to justice is more important than the usual ‘costs follow the event’ rule.
  • Public interest litigants who seek costs for themselves risk being treated as self-interested and may face an adverse costs order if they lose.
  • The ‘costs follow the event’ principle does not apply automatically in public interest cases; courts must consider the broader public good.

Court orders

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  1. 1.The notice of motion dated February 28, 2023 is hereby allowed.
  2. 2.There shall be no order as to costs.

The bench

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

Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Supreme Court of Kenya (single judge)
unknown
Jurisdiction invoked
Section 23(2C) of the Supreme Court Act, 2011

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.

We are satisfied that the principle in the Rai case is applicable to the present application-that where an injustice is apparent in the single judge decision, a larger Bench can undo the injustice and the finality clause in rule 6(3) would not be a bar to a review of that decision more so on the narrow issue of costs.
p. 6 Jurisdiction to review single judge decision despite finality clause
Costs are not awarded to a party that has not spent time or resources in prosecuting or defending a matter and the ‘costs follow the event’ principle would in the circumstances not be applicable.
p. 6 Costs for non-participating parties
The public interest element in the case before the superior courts below is obvious and so the costs follow the event order was made in error by the single judge.
p. 6 Public interest litigation and costs

Key timeline

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2023-02-17
A single judge of the Supreme Court (DCJ Mwilu) ordered Katiba Institute to pay costs to several respondents.
2023-02-28
Katiba Institute filed a notice of motion seeking review of the single judge’s costs order.
2023
A five-judge bench of the Supreme Court allowed the review, set aside the costs order, and directed that there be no order as to costs.

Practical implications

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For lawyers

Reviewing single judge costs orders

When a single judge’s costs order seems unjust, especially in a public interest case, you can apply to a larger bench under Section 23(2C) of the Supreme Court Act. The finality clause in Rule 6(3) will not block review if an injustice is apparent. Also, always record when a party does not participate – that party should not get costs.

For businesses

Costs in public interest challenges

If your business brings or defends a constitutional case that serves the public good, you may avoid paying the other side’s costs even if you lose – as long as you act in good faith. This reduces financial risk when challenging government actions on public interest grounds. But do not seek costs yourself, or you may be treated as self-interested.

For individuals

Protection from costs in public litigation

If you file a genuine constitutional case in the public interest, the court may not order you to pay costs even if you lose. This protects your right to access justice. However, if you ask for costs when you win, you could be ordered to pay the other side’s costs if you lose. Always disclose your public interest motive clearly.

Frequently asked questions

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What is the Katiba Institute case in Kenya?+

It is a Supreme Court case where Katiba Institute, a public interest group, challenged the appointment of National Land Commission members. The court ruled that the group should not have been ordered to pay costs because the case was about constitutional justice, not private gain.

Can a single judge's costs order be reviewed in Kenya Supreme Court?+

Yes. The Supreme Court has confirmed that a larger bench can review a single judge’s decision on costs if an injustice is apparent, even though the rules say the single judge’s decision is final. This applies especially to public interest cases.

Do public interest litigants have to pay costs in Kenya?+

Generally, no. The Supreme Court has held that in public interest constitutional litigation, the main goal is access to justice. So bona fide public interest litigants should not be penalised with costs, unless they acted in bad faith or sought costs for themselves.

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

It means the losing party usually pays the winning party’s legal costs. But the Supreme Court has clarified that this rule does not automatically apply in public interest cases. Courts must prioritise access to justice over penalising losing litigants who acted in good faith.

Later judgments citing this (9)

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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, "Okoiti & 2 others v Attorney General & 14 others", Case Analysis (2023). Petition (Application) 2 (E002) of 2021. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/31/eng@2023-04-21

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