By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021*
Some of the ways through which courts encourage aggrieved persons to make use of public litigation is being slow in awarding costs where such parties do not get favourable outcomes. As Majanja, J explained in Harun Mwau and Others v. Attorney-General and Others, Nairobi High Court Petition No. 65 of 2011, [2012] eKLR: “In matters concerning public-interest litigation, a litigant who has brought proceedings to advance a legitimate public interest and contributed to a proper understanding of the law in question without private gain should not be deterred from adopting a course that is beneficial to the public for fear of costs being imposed. Costs should therefore not be imposed on a party who has brought a case against the State but lost. Equally, there is no reason why the State should not be ordered to pay costs to a successful litigant.”
This was in fact highlighted in the case of Brian Asin & 2 others v Wafula W. Chebukati & 9 others [2017] eKLR43 where the place of public litigation in constitutional matters was summarized in the following words:
The rationale for refusing to award costs against unsuccessful litigants in constitutional litigation was appreciated by the South African constitutional court which observed that “an award of costs may have a chilling effect on the litigants who might wish to vindicate their constitutional rights.”[27] The court was quick to add that this is not an inflexible rule[28] and that in accordance with its wide remedial powers, the Court has repeatedly deviated from the conventional principle that costs follow the result.
The Court in the case noted that the rationale for the deviation was articulated by the South African Constitutional Court in Affordable Medicines Trust vs Minister of Health where Ngcobo J remarked: –
“There may be circumstances that justify departure from this rule such as where the litigation is frivolous or vexatious. There may be conduct on the part of the litigant that deserves censure by the Court which may influence the Court to order an unsuccessful litigant to pay costs. The ultimate goal is to do that which is just having regard to the facts and circumstances of the case.”
The Court also quoted Sachs J in the same case who set out three reasons for the departure from the traditional principle thus: –
“In the first place it diminishes the chilling effect that adverse costs orders would have on parties seeking to assert constitutional rights. Constitutional litigation frequently goes through many courts and the costs involved can be high. Meritorious claims might not be proceeded with because of a fear that failure could lead to financially ruinous consequences. Similarly, people might be deterred from pursuing constitutional claims because of a concern that even if they succeed they will be deprived of their costs because of some inadvertent procedural or technical lapse. Secondly, constitutional litigation, whatever the outcome, might ordinarily bear not only on the interests of the particular litigants involved, but on the rights of all those in similar situations. Indeed, each constitutional case that is heard enriches the general body of constitutional jurisprudence and adds texture to what it means to be living in a constitutional democracy. Thirdly, it is the state that bears primary responsibility for ensuring that both the law and state conduct are consistent with the Constitution. If there should be a genuine, nonfrivolous challenge to the constitutionality of a law or of state conduct, it is appropriate that the state should bear the costs if the challenge is good, but if it is not, then the losing nonstate litigant should be shielded from the costs consequences of failure. In this way responsibility for ensuring that the law and state conduct is constitutional is placed at the correct door.”
In addition to the above reasons, the Court in Brian Asin case pointed out that costs are awarded at the unfettered discretion of the court, subject to such conditions and limitations as may be prescribed and to the provisions of any law for the time being in force, but they must follow the event unless the court has good reason to order otherwise. The Court cited the Supreme Court of Kenya in the case of Jasbir Singh Rai & Others vs Tarlochan Rai & Others [2014] eKLR where it was observed that:-
“In the classic common law style, the courts have to proceed on a case by case basis, to identify “good reasons” for such a departure. 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…….”
The reason for exempting public litigation from award of costs has been cited as being that the litigant is usually advancing public interest as opposed to personal gain. Thus, the primary consideration in constitutional litigation is for the court to consider the way in which a costs order would hinder or promote the advancement of constitutional justice. In other words, as Supreme Court noted, the Court must consider the “nature of the issues” rather than the “characterization of the parties” meaning the costs should not be determined on whether the parties are financially well-endowed or indigent. While the matter is a question of discretion, the court must not apply this or any other general rule in such a way as to exclude the exercise of the discretion entrusted to it and the material must exist upon which the discretion can be exercised. The discretion, like any other must be exercised judicially and the court ought not to exercise it against the successful party except for some reason connected with the case.
However, it is not within the judge’s discretion to order a party who was completely successful and against whom no misconduct is even alleged to pay costs. As stated by Court in Brian Asin case “It is clear from the authorities that the fundamental principle underlying the award of costs is two-fold. In the first place the award of costs is a matter in which the trial Judge is given discretion. ……But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could come to the conclusion arrived at. In the second place the general rule that costs should be awarded to the successful party, a rule which should not be departed from without the exercise of good grounds for doing so.”
The instances where Courts may admit exceptions to the general rule that in constitutional litigation an unsuccessful litigant in proceedings against the state ought not to be mulcted with costs as they may have a chilling effect on them. One of the exceptions, that justify a departure from the general rule, is where the litigation is frivolous or vexatious. As a matter of fact, Public Interest Litigation was designed to serve the purpose of protecting rights of the public at large through vigilant action by public spirited persons and swift justice. But this tool has been plagued with misuses by persons who file Public Interest Litigations just for the publicity and those with vested political interests. The courts therefore are bound to keep a check on the cases being filed and ensure the bona fide interest of the petitioners and the nature of the cause of action, in order to avoid unnecessary litigations. As Lenaola, J (as he then was) in Okiya Omtatah Okiti vs. Communications Authority of Kenya & 14 Others [2015] eKLR, stated:
“In my view, this Court has a duty to protect the noble motive of public interest litigation from those who file claims out of mischief and less than genuine interest in the guise of protecting a public interest. The filing of false and frivolous public interest litigation which risk diverting the Court’s attention from genuine cases will not be entertained.”
*This is article is an extract from an article by Dr. Kariuki Muigua, PhD,Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards): Muigua, K., “The Role of Courts in Safeguarding Environmental Rights in Kenya: A Critical Appraisal,” http://kmco.co.ke/wp-content/uploads/2019/01/The-Role-of-Courts-in-Safeguarding-Environmental-Rights-in-Kenya-A-Critical-Appraisal-Kariuki-Muigua-17th-January-2019-1.pdf. Dr. Kariuki Muigua is Kenya’s foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized as one of the leading lawyers and dispute resolution experts by the Chambers Global Guide 2021.
References
African Network for Animal Welfare (ANAW) v The Attorney General of the United Republic of Tanzania, Reference No. 9 of 2010.
Brian Asin & 2 others v Wafula W. Chebukati & 9 others [2017] eKLR, Petition 429 of 2017.
Constitution of Kenya, Laws of Kenya, Government Printer, Nairobi.
Environment and Land Court Act, Act No. 19 of 2011.
Boyd, D.R., ‘The Implicit Constitutional Right to Live in a Healthy Environment,’ Review of European Community & International Environmental Law, Vol. 20, No. 2, 2011, pp. 171-179.
Joseph Leboo & 2 others v Director Kenya Forest Services & another [2013] eKLR, Environment and Land 273 of 2013.
Muigua, K., Avoiding Litigation through the Employment of Alternative Dispute Resolution, a Paper presented by the author at the In-House Legal Counsel, Marcus Evans Conference at the Tribe Village Market Hotel, Kenya on 8th& 9th March, 2012. Available at: http://kmco.co.ke/wp-content/uploads/2018/08/Avoiding-Litigation-through-the-employment-of-ADRMercusEvans-Paper.pdf [Accessed on 02/12/2021]
Strengthening Judicial Reform in Kenya: Public Perceptions and Proposals on the Judiciary in the new Constitution, ICJ Kenya, Vol. III, May, 2002;
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