Mulungusi Muthembwa Mutunga v Managing Director, Kenya Wildlife Service & 2 others [2017] eKLR principle set out in section 27 of the Civil Procedure Act as follows: “27. Costs (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.” 14. However, in constitutional litigation, the consideration is a little different, regard being had to public interest consideration of access to justice by enforcement of the constitution. The Supreme Court in Jasbir Singh Rai & 3 Ors. v. Tarcholan Singh Rai & 4 Ors. [2014] eKLR has put the matter down as follows: “[15] It is clear that there is no prescribed definition of any set of “good reasons” that will justify a Court’s departure, in awarding costs, from the general rule, costs-follow-the-event. In the classic common law style, the Courts have proceeded 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…. [18] It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation.” 15. The statement of law and judicial policy by the Supreme Court regarding costs in public interest cases binds this Court. In similar terms this Court in Nairobi Petition No. 329 of 2016, Feisal Hassan & 2 Ors. v. The Public Service Board of Marsabit County and Anor., had occasion to find as follows 2. Costs of litigation are in the in discretion of the Court. While generally in civil proceedings the principle on costs is that costs follow the event (see section 27 of the Civil Procedure Act), in constitutional litigation, however, the Rules make special provision for the guidance of the Court. The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure, 2013 provides guidance at Rule 26 as follows: “26. (1) The award of costs is at the discretion of the Court. (2) In exercising its discretion to award costs, the Court shall take appropriate measures to ensure that every person has access to the Court to determine their rights and fundamental freedoms. http://www.kenyalaw.org - Page 7/11