Guy Spencer Elms & another v Director of Public Prosecutions & 2 others

Court of Appeal

24 June 2022

DMD. K. Musinga ASAsike-Makhandia KMK. M'inoti

1,446 words in judgment

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The bottom line

Kenya's Court of Appeal cancelled a Kshs 21 million costs award, ruling that public interest litigation and a later prosecution withdrawal justify each side paying its own costs.

What this practically means

Executive summary

The appellants had sought judicial review orders of certiorari and prohibition to quash and stop the prosecution of the 1st appellant for forgery, contending the prosecution was malicious, in bad faith, and founded on a civil dispute pending before the Environment and Land Court. The High Court (Odunga, J.) dismissed the application with costs on 14 June 2017. On appeal, counsel disclosed that on 12 June 2020 the DPP had terminated and withdrawn the criminal charges. The Court declared the appeal moot insofar as it sought certiorari and prohibition, since the prosecution had already been stopped, and counsel withdrew the appeal except as against the award of costs. The 3rd respondent had filed a bill of costs of Kshs 21,205,546.00, and the Court had earlier stayed taxation pending this appeal. On the costs issue, the Court applied section 27(1) of the Civil Procedure Act and the Supreme Court's decision in Jasbir Singh Rai, reaffirming that costs follow the event but remain subject to judicial discretion. It held that the judicial review application raised pertinent public interest issues regarding the DPP's exercise of discretion in preferring charges, that the termination of the prosecution suggested the appellants' complaints were not entirely frivolous or baseless, and that the respondents did not defend the award of costs. The Court allowed the appeal against the award of costs and directed each party to bear its own costs of the appeal. The judgment is binding on lower courts on the discretionary nature of costs awards.

Key legal issues

Whether the award of costs against the appellants should be disturbed after the DPP terminated the prosecution

Holding

Yes. The termination of the prosecution suggested the appellants' complaints were not entirely frivolous or baseless, the application raised public interest issues, and the respondents did not defend the award; the appeal against costs was allowed.

Reasoning

The judicial review application raised pertinent public interest issues concerning the DPP's discretion to charge. The principal respondents were public institutions. The trial court did not advert to the public interest aspect. The DPP later terminated the prosecution on his own volition, suggesting the complaints were not frivolous, and the respondents did not defend the award of costs.

p. 3

Standard for interference with a trial court's discretion on costs

Holding

Costs are discretionary under section 27(1) of the Civil Procedure Act and follow the event unless the court orders otherwise; the appellate court will not readily interfere unless the discretion was wrongly exercised.

Reasoning

Section 27(1) of the Civil Procedure Act vests discretion in the court, with a proviso that costs follow the event unless for good reason otherwise. Citing Waibara v Kibeh and the Supreme Court in Jasbir Singh Rai, the Court reaffirmed that costs do not constitute an unchanging consequence of proceedings and the ultimate factor is judicial discretion.

p. 2

Legal principles established

The Court of Appeal will not readily interfere with a trial court's discretion on costs unless it is demonstrated that the discretion was wrongly exercised.
Costs follow the event but that is not an invariable rule; the ultimate factor is the judiciously exercised discretion of the court, in which public interest and the conduct and motivations of the parties are relevant.
Courts will not decide cases in which there is no longer any actual controversy - the doctrine of mootness.

Court orders

1.Appeal against the award of costs by the High Court allowed
2.Each party to bear its own costs of the appeal

Authorities

Legislation

Civil Procedure Actsection 27(1)

Cases cited (3)

National Assembly of Kenya v Okiya Omtata Okoiti & Another
CA. No. 53 of 2019
Statement of the doctrine of mootness
Clement Kungu Waibara v Anne Wanjiku Kibeh & Another
[2020] eKLR
Appellate court will not readily interfere with trial court's discretion on costs unless wrongly exercised
Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others
[2014] eKLR
Costs follow the event but the ultimate factor is the judiciously exercised discretion of the court; public interest and parties' conduct are relevant

On appeal from: High Court at Nairobi; HC J.R. App. No. 574 of 2016
Jurisdiction invoked: Appellate jurisdiction of the Court of Appeal over the High Court's judgment in a judicial review application (costs only, the appeal otherwise withdrawn as moot)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Guy Spencer Elms & another v Director of Public Prosecutions & 2 others", Case Analysis (2022). Civil Appeal 226 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/582/eng@2022-06-24

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