Khelef Khalifa, Maina Kiai & Tirop Kitur v Independent Electoral and Boundaries Commission & Kenya Bureau of Standards [2018] KEHC 9674 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO.  168 OF 2017

KHELEF KHALIFA .........................................................................1ST PETITIONER

MAINA KIAI.....................................................................................2ND PETITIONER

TIROP KITUR..................................................................................3RD PETITIONER

VERSUS

THE INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION ................................................1ST RESPONDENT

KENYA BUREAU OF STANDARDS .....................................2ND RESPONDENT

RULING

1.  In the petition dated 25th April 2017, the petitioners/applicants herein sought the following orders:

i.  A declaratory order that the actions of the respondents in exempting the electronic/biometric voter identification devices from a pre-export verification of conformity undermines Articles 27, 38(2), 86(a) and (d) of the Constitution.

ii. An order that in keeping with the principles of public participation enumerated in Article 10, the electronic/biometric voter identification devices be subjected to a process of public examination and verification as to their suitability to their intended purpose before they are deployed for use in the general elections scheduled to take place in August 2017.

iii.   An order that the applicants, respondents and other necessary stakeholders to be determined by the court, to participate in the public examination and verification of the electronic/biometric voter identification at a date to be determined by the Honourable court.

iv. That the parties to prepare a joint report of the public examination and  verification of the electronic/biometric voter verification devices which report  is to be made public and  filed before Honourable Court.

v. An order that if the equipment is discovered to be lacking in merchantable quality and unfit for the purpose for which they are intended and imported, the 1st respondent acquire other equipment of merchantable quality and suitable for the purpose of ensuring electronic/biometric identification of voters in keeping with its mandate under the Constitution and the need for transparency in the electoral process.

vi.   Costs of this petition.

vii.   Any further relief or orders that this Honourable court may deem just and fit to grant.

2. In a judgment delivered on 19th July 2017, Mr Justice Mativo dismissed the applicants petition and awarded costs of the suit to the respondents thereby precipitating  the instant application in which  the applicants seek orders:

1.  That this Honourable Court be pleased to partly review and set aside the judgment of the Honourable Mr Justice Mativo awarding the costs to the respondents.

The application is based on the grounds:

1. That the learned judge rendered a decision in the said judgment at paragraph 77 on the issue of costs per incuriam.

2. That the petition subject to these review proceedings was founded on Article 258(c) of the Constitution allowing for the institution of a suit public interest  as it sought to protect the rights guaranteed in Article 38, 81 and  86   of the Constitution of Kenya.

3. That this application has been made without unreasonable delay.

4. That it is fair and just that the orders sought be granted.

3. The application is supported by the affidavit of the 2nd applicant sworn on 28th July 2017 in which he avers that the petition was filed as a Public Interest Litigation (PIL) in a bid to protect rights guaranteed in Article 38(2), 81 and 86 of the Constitution and that the applicants did not take into account the subsisting practice and judicial precedents on the issue of award of costs in Public Interest Litigation suits.

4. He further avers that the decision on costs was made per incuriam as it is now trite law in Public Interest Litigation that each party bears their own costs of the case regardless of the outcome of the suit.

5. The respondents opposed the application through the grounds of opposition dated 27th February 2018 and set out the following grounds:

1. The application does not meet the legal threshold for the grant of orders for  review;

2. If as the applicant alleges, the judgment was per incuriam on the issue of costs, that in issue for appeal and not for review.

3. The award of costs is at the discretion of the decision maker.  No basis has been laid to demonstrate that the discretion has not been judiciously exercised.

4. It is factually incorrect to suggest that the petition by the petitioners was solely public interest litigation.  The petitioners had a personal/vested interested in the outcome of the decision.

6. Parties thereafter canvassed the application by way of written submissions which I have carefully perused.  At the hearing of the application, Miss Oraro, learned counsel for the applicants submitted that the petition was brought under Article 22 and 258 of the Constitution to protect constitutional rights and in the interest of the public.  Counsel argued that the award of costs to the respondents  was made in total disregard  to the evolving  practice in our courts  that recognizes  that cases  filed in interest of the public  be exempted from the award of costs  in which case, costs should follow the event.

7. Counsel submitted that this application satisfies the conditions under Order 45 Rule 1 of the Civil Procedure  that set out  the circumstances  under which an order for review of judgment may be granted as the petition  that gave rise to the award  for costs  was not frivolous.

8. Mr. Imende, learned counsel for the 1st respondent, submitted that the argument that the impugned judgment was made per incuriam is ground for appeal and not a basis for seeking an order for review.  For this argument counsel relied on the decision in the case of National Bank of Kenya vs Ndungu Njau Civil Application No. 211 of  1996(unreported) in which it  was held:

“…the learned judge….made a conscious decision on the matters in controversy and exercised his discretion in favour of the respondent.  If he had reached a wrong conclusion of law, it could be a good  ground  for appeal  but not for review.  Otherwise we agree that the learned judge would be sitting in appeal on his own judgment which is not permissible in law.  An issue which has been hotly contested as in this case cannot be reviewed by the same court which had adjudicated upon it.”

9. Counsel further submitted that under Section 27 of the Civil Procedure Act, the decision on whether or not to award costs is at the discretion of the court and that the principle is that costs follow the event unless the court has good reasons to order otherwise.  It was the 1st respondent’s case that since the petition was dismissed, the court was perfectly in order to award the costs in favour of the 1st respondent.

10.  It was further submitted that the proposition that no costs ought to be awarded in public interest litigation is erroneous.  For this argument the 1st respondent cited the case of Brian  Asim and 2 Others vs Wafula W. Chebukati  & 9 Others [2017] eKLR wherein the  court  was of the opinion that:

“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.  It is not judicial exercise of the judge’s discretion to order a party who was completely successful and against whom no misconduct is even alleged to pay costs.”

Determination

11.   I note that the main issue for determination is whether the applicant has made out a case to warrant the review of the judgment delivered  on  19th May 2017, specifically in respect to the award of costs to the 1st respondent.  Section 80 of the Civil Procedure Act stipulates as follows on an application for review of judgment

Any person who considers himself  aggrieved-

a) By a decree or order  from which  an appeal is  allowed by this Act, but  from which no appeal  has been  preferred; or

b) By a decree of order  from which no appeal is allowed by this Act, may  apply for a review  of judgment  to the court  which passed  the  decree or made the order, and the court may make such  order thereon as it thinks fit.

Order45 Rule 1 of the Civil Procedure Rules on the other hand provides  as follows:

(1) Any person considering  himself aggrieved-

a) By a degree  or order  from which an appeal is allowed, but from which no appeal  has been preferred; or

b) By a decree or order  from which no appeal  is hereby allowed, and who from the discovery of new  and  important matter or evidence which, after  he  exercise  of due diligence, was not  within his knowledge or could not be produced  by him at the time  when the decree was passed or the order made, or on account of some mistake or error apparent  on the face of the record, or for  any other sufficient  reason, desires  to obtain a review  of the decree  or order, may apply  for a review  of judgment  to the court which  passed the decree of made the order  without  unreasonable delay.

12.  In the instant case, the applicant seeks an order for review on the basis that the award of costs to the respondent was made per incuriam  and in disregard to the evolving practice of courts not awarding costs in public interest litigation suits.  Section 27 of the Civil Procedure Act stipulates as follows on the award of cost:

1. Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:

Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.

2. The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.

Blacks Law  Dictionary (10th Edition) defines per incuriam as follows:

“( Of a judicial decision) wrongly  decided, because the  judge  or judges  were ill informed  about the applicable law.”

13.   My understanding of the above definition of per incuriam is that it is a misdirection or error on the applicable law.  To my mind, such a misdirection or lack of information on the law does not fall under the ambit of the conditions set out under order 45 Rule 1 of the Civil Procedure Rules for seeking a review.  An error in law can only be cured through an appeal.

14.  While this court appreciates that the emerging practice in our courts  is not to award costs in public interest litigation matters, the said practice does not in any way take away the discretionary powers of the court to award costs to successful litigants in such cases, where in the opinion of the judge, such an award is merited.

15. In the instant case, I find that in awarding  costs to  the  1st respondent, the Honourable Mativo J. exercised his discretion and was well within the law to award such costs.  I find that in the circumstances of this case, reviewing the award of costs would be tantamount to this court sitting on appeal in the decision of a court of equal jurisdiction which is clearly not what was envisaged in the enactment of the provisions of Order  45 Rule 1  of the Civil Procedure Rules.

16. For the above reasons, I decline to allow the application dated 19th  July 2017 which  I hereby dismiss with no orders as to costs.

Dated, signed and  delivered in open court at Nairobi this 8th day of  November 2018.

W. A. OKWANY

JUDGE

In the presence of:

Miss Nyonje  for the 1st respondent

Court Assistant – Kombo