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Case Brief · caselaw.co.ke
Supreme CourtOtherPetition 18 of 2019

Director of Public Prosecution v Kamau & 4 others

Supreme Court of Kenya
23 September 2020
902 words in judgment
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The bottom line

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Supreme Court: each party pays own costs in public interest case, even after withdrawal.

What this practically means

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The Director of Public Prosecutions withdrew an appeal to the Supreme Court. The respondents wanted their legal costs paid. Normally, the losing party pays costs. But the Court said this case involved important public issues, like the powers of the anti-corruption commission. So it ordered each side to pay its own costs. This shows that public interest can override the usual cost rules.

Executive summary

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This judgment concerns a costs dispute arising from the withdrawal of a Petition of Appeal by the Director of Public Prosecutions (DPP). The DPP had appealed to the Supreme Court against a decision of the Court of Appeal. On 26th September 2019, the Supreme Court recorded a consent order marking the petition as withdrawn, but parties could not agree on costs. The DPP argued that no costs order should be made, while the respondents (except the 3rd, 4th, and 5th) argued that costs must follow the event. The Supreme Court, relying on its earlier decision in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others, reiterated that while the general principle is that costs follow the event, this is not an invariable rule. The Court has discretion to depart from this principle based on the special circumstances of the case, including public interest. The Court noted that the High Court and Court of Appeal had both declined to award costs due to the public interest nature of the issues, which included the powers of the Ethics and Anti-Corruption Commission and the President's authority over the DPP. The Supreme Court agreed, finding that these issues transcended the parties' specific interests and had settled in the public sphere. Consequently, the Court exercised its discretion and ordered each party to bear its own costs of the appeal.

Questions the Court framed

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

  1. 1.Whether costs should be paid to the Respondents consequent upon the withdrawal of the Petition of Appeal.

Key legal issues

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01

Whether costs should be awarded to the Respondents after the Appellant withdrew the Petition of Appeal.

Holding

The Court exercised its discretion and ordered each party to bear its own costs because the issues raised in the appeal were of great public interest, transcending the specific interests of the parties.

Reasoning

The Court noted that the appeal raised issues of great public interest, including the extent of powers of the Ethics and Anti-Corruption Commission, whether corruption offences could be initiated when the Commission was not properly constituted, and whether the President can direct the Commission or the DPP in executing their mandates. These matters had settled in the public sphere. The Court agreed with the High Court and Court of Appeal that such public interest warranted a departure from the general rule that costs follow the event. The Court also reiterated that the fact the Appellant is a public entity is not itself a reason to deny costs, but the specific circumstances of this case, being public interest litigation, justified the order.

Legal principles established

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  • Costs normally follow the event, but this is not an absolute rule.
  • Courts have discretion to depart from the cost rule in special circumstances.
  • Public interest litigation is often exempt from cost awards.
  • Being a public entity does not automatically exempt a party from paying costs.
  • Each case must be assessed on its own specific facts.

Court orders

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  1. 1.The Petition of Appeal herein is marked as withdrawn.
  2. 2.Each Party shall bear its costs of the Appeal.

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
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal
Jurisdiction invoked
Article 163(4)(a) of the Constitution

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.

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.
p. 3 General principle on costs
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 …
p. 3 Public interest litigation and costs
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
p. 3 Public entity and costs
Each Party shall bear its costs of the Appeal.
p. 4 Final costs order

Key timeline

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2019-09-26
Supreme Court records consent order withdrawing the DPP's Petition of Appeal.
2019 (post-withdrawal)
Supreme Court rules each party bears its own costs due to public interest nature of the case.

Practical implications

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For lawyers

Costs strategy in public interest cases

When handling public interest litigation, advise clients that cost orders may not follow the usual 'loser pays' rule. Even if your client wins or the other side withdraws, the court may order each party to bear its own costs. Prepare clients for this possibility and factor it into settlement negotiations.

For businesses

Litigation costs and public interest

If your business is involved in a case that raises issues of public concern—such as corruption or constitutional powers—be aware that the court may not award costs even if you win. This can affect your decision to pursue or defend litigation. Consider the public interest angle when assessing the financial risks of a case.

For individuals

When you might not get costs back

If you win a case that involves important public issues, you may not automatically get your legal costs paid by the other side. Kenyan courts have discretion to order each party to pay its own costs in public interest matters. This means you could still be out of pocket even if you succeed.

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 can depart from this rule in special circumstances, such as when the case involves important public interest issues.

Can public interest litigation affect costs in Kenya?+

Yes. Kenyan courts often exempt public interest cases from the usual cost rules. Even if a party withdraws or loses, the court may order each side to bear its own costs because the issues benefit the public.

What happens to costs when a case is withdrawn in Kenya?+

If a case is withdrawn, the court decides who pays costs. Normally the withdrawing party pays, but if the case involves public interest, the court may order each party to pay its own costs, as happened in the DPP v EACC case.

Does the DPP have to pay costs if it withdraws a case in Kenya?+

Not automatically. In the DPP v EACC case, the Supreme Court ordered each party to bear its own costs after the DPP withdrew, because the appeal raised issues of great public interest. Each case is decided on its own facts.

Cite this brief

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Cite this brief

Caselaw, "Director of Public Prosecution v Kamau & 4 others", Case Analysis (2020). Petition 18 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/14/eng@2020-09-23

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