Public interest litigation, a formidable tool for championing societal causes and upholding justice on a grand scale, has recently sparked a thought-provoking debate. This discourse centers on whether victorious public interest litigants should pursue costs. This article delves into the intricate layers of this debate, dissecting its core arguments and underlying principles.
In the case of Okoiti & 2 others v Attorney General & 14 others (Petition (Application) 2 (E002) of 2021) [2023] KESC 31 (KLR) (21 April 2023) (Ruling), an intriguing scenario unfolded. The application sought the review and reversal of a costs order against the applicant. Particularly contentious was the award of costs to respondents who, by opting not to actively participate in the case, seemingly violated the ‘costs follow event’ principle. This case ignited a profound discussion about whether public interest litigants should, upon triumph, refrain from pursuing costs. The court’s perspective extended to both victorious and unsuccessful litigants, emphasizing the need to preserve the appearance of genuine commitment to public interest, rather than self-interest. Importantly, the pursuit of allocation of costs also exposes the litigant to bearing similar costs if the case is unsuccessful.
Beneath this discourse lies a fundamental premise rooted in legal precedent: the determination of costs should transcend parties’ financial status or personal inclinations. Instead, it should pivot on the advancement of constitutional justice. In the realm of public interest litigation, where the overarching goal is societal welfare, the non-allocation of costs becomes a crucial tool for not only ensuring access to justice but also curbing self-serving behavior.
However, a counterargument surfaces. It contends that cost allocation should be guided by the law and the principle of equal protection under the law. This means costs shouldn’t hinge on litigants’ motives, whether personal or societal. This counter position calls for a more nuanced approach that accounts for the intricate interplay between public interest advocacy and equitable treatment for all litigants whether for public interest or non-public interest litigation.
Key principles gleaned from the legal precedents relied upon underscore the complex nature of this debate. Instances abound where costs were not awarded while making allowances for public interest considerations, thereby sidestepping a rigid “costs follow event” doctrine. The court’s ruling reinforced the notion that public interest litigants, even in their pursuit of justice, must guard against compromising their credibility through a fixation on financial gains over broader societal well-being.
The court also acknowledged its authority to review decisions made by a single judge, as outlined in Section 23(c) of the Supreme Court Act. This authority becomes particularly relevant when apparent injustices loom large. Notably, the court asserted that the finality clause enshrined in Rule 6 of the Supreme Court Rules, 2020 shouldn’t impede review, especially concerning specific issues such as costs. The presence of a larger bench can rectify errors without undermining the efficacy of the clause.
In conclusion, the dilemma surrounding whether victorious public interest litigants should pursue costs underscores the multifaceted nature of the legal landscape. While the court’s ruling champions the notion of refraining from seeking costs to uphold the image of public interest commitment, the legal community at large grapples with a delicate balancing act. Striking equilibrium between litigants’ individual interests and the broader mission of justice and societal progress remains a continuous endeavor. This ongoing debate will inevitably shape the conduct and perception of public interest litigants in their tireless pursuit of a more equitable society within the Republic of Kenya.
Authors:
Zahra Nechesa – Partner
Nderitu Wang’ombe – Lawyer
