Jared Odoyo Okello v Board of Management, Ponge Primary School & 11 others; Fredrick Otieno Outa (Interested Party) [2019] KECA 995 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that courts cannot pile full legal costs on a losing rights petitioner against parties who never actively fought the case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge of the High Court exercised her discretion judicially in awarding costs to all the respondents upon dismissal of the constitutional petition
- 2.Whether costs should have been awarded to respondents who did not actively participate in the proceedings
- 3.Whether interlocutory orders granted in the appellant's favour precluded the award of costs following dismissal of the petition
Key legal issues
#Discretionary award of costs in constitutional petitions
Section 27 of the Civil Procedure Act must be read with Rule 26 of the Mutunga Rules; the discretion is judicial and in rights litigation must not be punitive or inhibit access to justice
The court held that costs follow the event under the proviso to section 27, but in fundamental-rights litigation the overriding objective of facilitating access to justice informs how discretion is exercised. The judge had applied the general costs-follow-the-event principle without giving specific reasons. The discretion must account for the circumstances of the particular suit, including which parties actually contested the case.
Costs against non-participating respondents
Full costs were not justified against the 1st to 12th respondents who, except for the 5th and 7th, did not actively participate in the petition
Although the appellant had dragged all respondents to court and it was fair that he pay their costs, the court found the trial judge should have accounted for the fact that most respondents took no active part and that the real contest was between the appellant and the 13th respondent. The order for full costs against all was therefore not justified and was set aside.
Effect of interlocutory orders granted in the appellant's favour
Interlocutory orders granted ex parte are not final; entitlement to relief remained live until the final judgment dismissing the petition
The appellant argued the judge ignored that his prayers had been granted by Tuiyot J and Mabeya J. The court held the orders were interlocutory, granted at the vacation stage, to be confirmed or set aside after full hearing. The final dismissal determined entitlement, so the interlocutory grants did not make the appellant the successful party for costs purposes.
Interference with the costs award to the 13th respondent
The award of costs to the 13th respondent was proper as he was actively represented in resisting the petition
The 13th respondent, though joined as an interested party, had sworn an affidavit and filed a preliminary objection and was actively represented by counsel throughout. The judge properly exercised her discretion in his favour, and there was no justification for interference on that aspect.
Legal principles established
#- In a suit to enforce fundamental rights and freedoms, the award of costs must not be punitive or deter litigants from accessing the courts
- Costs should not be awarded against a party to litigants who did not actively participate in the proceedings
- An appellate court will not interfere with a judge's exercise of discretion unless the judge misdirected himself or was clearly wrong resulting in misjustice
Court orders
#- 1.Set aside the order of costs made by the trial judge in regard to the 1st, 2nd, 3rd, 4th, 6th, 8th, 9th, 10th, 11th and 12th respondents in the constitutional petition
- 2.Confirmed the award of costs by the trial judge to the 5th, 7th and 13th respondents only
- 3.The 13th respondent awarded full costs of this appeal and the 1st to 12th respondents awarded half their costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu
- High Court Petition No. 13 of 2014
- Jurisdiction invoked
- First appeal to the Court of Appeal against the High Court ruling in a constitutional petition
Relief refused
#Interference with the award of costs in favour of the 13th respondent
The 13th respondent was actively represented in resisting the petition and the judge properly exercised her discretion
Costs
The 13th respondent awarded full costs of the appeal; the 1st to 12th respondents awarded half their costs; order of costs below set aside as against the non-participating respondents and confirmed as against the 5th, 7th and 13th respondents
Quotable passages
#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 court should exercise its discretion in awarding costs in such a way that the award of costs does not become punitive; or make it difficult for a litigant to access the courts; or discourage other litigants from accessing courts
The orders given at the interlocutory stage, were not final orders but mere interlocutory orders to be confirmed or set aside after the full hearing
The Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision
we allow this appeal to the extent of setting aside the order of costs made by the trial judge in regard to the 1st, 2nd, 3rd, 4th, 6th, 8th, 9th, 10th, 11 and 12th respondents in the constitutional petition
In regard to this appeal taking into account the circumstances, the order that commends itself to us on costs is to award to the 13th respondent full costs and the 1st to 12th respondents' half their costs
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jared Odoyo Okello v Board of Management, Ponge Primary School & 11 others; Fredrick Otieno Outa (Interested Party) [2019] KECA 995 (KLR)", Case Analysis (2019). Civil Appeal No. 2 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/995/eng@2019-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.