Mistry v De Souza and Others (Civil Appeal No. 22 of 1937) [1939] EACA 19 (1 January 1939)

## COURT OF APPEAL FOR EASTERN AFRICA

## BEFORE SIR CHARLES LAW, C. J. (Zanzibar); FRANCIS, J. (Uganda); and LANE, Ag. J. (Kenya).

## PHIROZ BEHERAMJEE MISTRY, Appellant (Original Plaintiff)

THE DISTRICT COMMISSIONER, NAIROBI, MESSRS. A. C. TANNAHILL, G. A. TYSON, DICKENS AND DR. DE SOUZA, as constituting the Licensing Court, 1937, of the District of Nairobi,

Respondents (Original Defendants)

Civil Appeal No. 22 of 1937

(Appeal from decision of H. M. Supreme Court of Kenya)

Costs-Liquor Ordinance, 1934, section 66-Costs incurred by members of Licensing Court in legal proceedings-Defence conducted by Legal Department on behalf of the Licensing Court.

The defence to this appeal was conducted by the Acting Solicitor General on behalf of the respondents, who were the members of a licensing court. On the appeal being dismissed the appellant argued that no costs should be awarded to the respondents since they had incurred no expense in resisting the appeal.

Held (22-2-38).—That the respondents were entitled to a taxation of their costs and to have the taxed costs paid by the appellant.

Harrison for the appellant.

Wallace, Acting Solicitor General, for the respondents.

RULING.—Section 66 of the Liquor Ordinance, 1934, as amended by section 25 of the Liquor (Amendment) Ordinance, 1935, provides that where costs are incurred by the members of a licensing court in connexion with legal proceedings such costs shall be paid by the treasurer out of the revenue of the Colony, unless the court before which the proceedings are taken orders such costs to be borne by the opposite party.

On behalf of the appellant it is urged that the respondents did not incur any costs in defending this appeal, because the learned Acting. Solicitor General appeared for them. This is no valid reason, however, for not awarding costs against the appellant, for the Crown has the right to appear by counsel in cases where persons in a public capacity are subject to proceedings in which the Crown has an interest, Rex v. The Archbishop of Canterbury, 1903, 1 K. B. 289. It cannot be said that the Crown had no interest in the present appeal, which involved legislation regarding the control of the sale of liquor, and in respect of which, had respondents lost the appeal, an order for the payment of appellant's costs out of the revenue of the Colony might have been made by virtue of the same section 66.

It seems to us, therefore, to employ the language used by the Master of the Rolls in the above case, that all the conditions are present which entitle the respondents to a taxation of their costs, and to have the taxed costs paid by the appellant. Accordingly, we make the order that the appellant pay the respondents' costs of this appeal.

We are given to understand that in the Supreme Court no order as to costs was made by consent. $\sim 1$