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Supreme CourtOtherPetition 1 (E026/2021) of 2022

Parliamentary Service Commission & 4 others v Salaries and Remuneration Commission & 7 others

Supreme Court of Kenya
28 October 2022
926 words in judgment
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The bottom line

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Kenya's Supreme Court ruled that public interest cases can justify each side paying its own legal costs.

What this practically means

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The National Assembly and other state bodies withdrew a Supreme Court appeal about MP allowances. The Salaries and Remuneration Commission asked for its legal costs to be paid. The Supreme Court refused, saying the case involved public institutions and public interest. Therefore, each side must pay its own costs. This shows courts can be flexible on costs in matters affecting the public.

Executive summary

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This was a ruling on costs following the withdrawal of an appeal by the 1st to 5th petitioners (National Assembly, Senate, Parliamentary Service Commission, Speaker of the National Assembly, and Speaker of the Senate) against the 1st to 7th respondents (Salaries and Remuneration Commission, Attorney General, Commission on Revenue Allocation, Council of Governors, Institute of Certified Public Accountants of Kenya, Katiba Institute, and Law Society of Kenya). The petitioners had filed the appeal prematurely before the Court of Appeal had rendered a substantive judgment, leading to the withdrawal. The 1st respondent sought costs, arguing the appeal was unnecessary and wasted judicial resources. The court, exercising its inherent jurisdiction under section 21(2) of the Supreme Court Act and rule 3(5) of the Supreme Court Rules 2020, applied the principles from Jasbir Singh Rai that costs follow the event but are subject to judicial discretion. The court noted that only the 1st and 7th respondents had peripherally participated, and the dispute involved public institutions and allowances for Members of Parliament, attracting public interest. Consequently, the court ordered that each party bear its own costs, declining to award costs against the petitioners.

Questions the Court framed

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

  1. 1.Whether the court should award costs against the petitioners upon withdrawal of the appeal

Key legal issues

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01

Whether costs should be awarded against the petitioners upon withdrawal of the appeal

Holding

Each party shall bear its own costs because the dispute involved public interest and public institutions, and only some respondents had peripherally participated.

Reasoning

The court considered that the petitioners and 1st respondent are public institutions and the matter involved allowances for Members of Parliament, a public office. The dispute was in the public sphere attracting public interest. Only the 1st and 7th respondents had filed preliminary objections and submissions; other respondents did not press for costs. The court exercised its discretion under section 21(2) of the Supreme Court Act and rule 3(5) of the Supreme Court Rules 2020, applying the principles from Jasbir Singh Rai that costs follow the event but are subject to judicial discretion and public interest considerations.

Legal principles established

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  • The Supreme Court has inherent jurisdiction to award costs under section 21(2) of the Supreme Court Act.
  • The general rule that 'costs follow the event' is not absolute and can be set aside by judicial discretion.
  • Public interest and the involvement of public institutions are valid reasons to order each party to bear its own costs.
  • Withdrawal of an appeal does not automatically mean the withdrawing party must pay the other side's costs.
  • Only parties that actively participate in proceedings may be considered for a costs award.

Court orders

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  1. 1.Parties shall bear their respective costs

The bench

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

Philomena Mbete Mwilu
P.M. MwiluDCJ
Currently serving
majority
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
Jurisdiction invoked
Section 21(2) of the Supreme Court Act and rule 3(5) of the Supreme Court Rules 2020

Relief refused

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Costs to the 1st respondent as prayed

The dispute is in the public sphere attracting public interest, making an order of costs against any party unfair

Costs

each party shall bear its own costs

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.

This court, by the cited provisions of section 21(2) of the Supreme Court Act and rule 3(5) of the Supreme Court Rules, 2020, has inherent jurisdiction to make orders as to costs.
p. 2 Jurisdiction to award costs
Considering that the dispute is one in the public sphere, attracting public interest, we think an order of costs against any of the parties would not, in those circumstances, be a fair exercise of discretion.
p. 3 Public interest and costs
Parties shall bear their respective costs. It is so ordered.
p. 3 Final orders on costs

Key timeline

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Before 2022
Petitioners (National Assembly, Senate, etc.) file an appeal prematurely before the Court of Appeal delivers a substantive judgment.
2022
Petitioners withdraw the appeal.
2022
Supreme Court delivers ruling on costs, ordering each party to bear its own costs.

Practical implications

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For lawyers

Costs discretion in public interest cases

When handling appeals involving public institutions, be aware that courts may deviate from the usual 'costs follow the event' rule. If your client is a public body or the case touches on public interest, argue for each party bearing own costs. Document peripheral participation to strengthen your position on costs.

For businesses

Public interest cases may limit cost recovery

If you are involved in litigation against a government body on a matter of public interest, you may not recover your legal costs even if you win. The court can order each side to pay its own costs. Factor this risk into your litigation strategy and consider alternative dispute resolution.

For individuals

Your costs in public interest lawsuits

If you sue a government institution over a public matter, the court may decide that you and the government each pay your own legal fees, regardless of who wins. This means you might not get your costs back even if you succeed. Understand this before taking on such cases.

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 Kenyan courts have discretion to order otherwise, especially in public interest cases like the National Assembly v Salaries Commission ruling.

Can I get my legal costs back if I sue the Kenyan government?+

Not automatically. If the case involves public interest, the court may order each party to bear its own costs, as happened in the National Assembly v Salaries Commission case. Always check the nature of the dispute.

What is the Supreme Court's power to award costs in Kenya?+

Under section 21(2) of the Supreme Court Act and rule 3(5) of the Supreme Court Rules 2020, the Supreme Court has inherent jurisdiction to make orders on costs, including deciding who pays.

Does withdrawing an appeal mean I have to pay costs in Kenya?+

Not necessarily. The court considers factors like public interest and whether the other side actively participated. In the National Assembly case, the court ordered each party to bear own costs despite withdrawal.

Cite this brief

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Cite this brief

Caselaw, "Parliamentary Service Commission & 4 others v Salaries and Remuneration Commission & 7 others", Case Analysis (2022). Petition 1 (E026/2021) of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/65/eng@2022-10-28

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