Mulungusi Muthembwa Mutunga v Managing Director, Kenya Wildlife Service & 2 others [2017] eKLR PUBLIC INTEREST SUIT/LITIGATION Your lordship, the Petitioner’s Petition was brought before this Honourable Court for the benefit of all Citizens of Kenya. The agreement in question was to allow the 2nd Respondent to access and exploit for commercial purposes, genetic resource, enzymes and Microorganisms within National Parks, National Reserves and other protected areas falling under the mandate of the first respondent. It is our humble submissions that the Petitioner did not have any personal private gain in this Petition. It was brought for and on behalf of all Citizens of Kenya and the future generation to ensure the environment was protected. Your Lordship, this being a Public Interest Litigation suit, the Petitioner ought not to pay costs to any party.” 9. Counsel for the Petitioner relied on the Court of Appeal decision in Supermarine Handling Services Ltd. v. KRA, Civil Appeal No. 85 of 2006 quoted in R. v. Medical Practitioners and Dentist Board & 3 Ors. ex. P. Kenya Hospital Association [2014] eKLR; Harun Mwau & Ors. v. AG & Ors., Nairobi HC Pet. No. 65 of 2011 [2012] eKLR quoted with approval by the Supreme Court in Jasbir Singh Rai & 3 Ors. v. Tarcholan Singh Rai & 4 Ors. [2014] eKLR. 10. The 3rd Respondent claimed costs on the basis that it had in addition to filing its own replying affidavit to the Petition, perused in preparation for trial the replying and further affidavits of the 1st respondent, attended court on several occasions for various directions in the matter and finally in accordance with directions of the Court filed well researched and detailed written submissions in readiness for the hearing of the Petition, and that it was the 3rd respondents intention to defend the petition which by its replying affidavit it “averred that the petition is fatally defective, dubious, vexatious, devoid of merit, dishonest, deceitful and a contemptuous attempt to mislead the court and to conceal material facts relevant to the just and fair determination of the facts in issue herein” and that the 3rd respondent had protested in the replying affidavit that it was being dragged into a matter in which it was not privy and that there was clearly no case against the 3rd respondent. 11. It was further submitted for the 3rd Respondent that the notice of withdrawal of the petition was filed without notice to the 3rd respondent and, therefore, without opportunity to address the issue of costs, in breach of Rules 27 of the Constitution of Kenya (Protection of rights and Fundamental Freedoms) Practice and Procedure Rules 2013 12. Counsel for the 3rd respondent relied on the principle that costs follow the event and while the court has discretion to depart from the general principle it would do so only for reasons to be recorded which did not exist in this case as the petitioner had merely dragged the 3rd respondent to court knowing too well that it did not have a case against the 3rd respondent. Counsel cited among others Nairobi High Court Civil Suit No. 66 of 2009, Joseph Oduor Anode v. Kenya Red Cross Society (2012) eKLR, per Odunga, J. for the general proposition that costs follow the event. DETERMINATION The principle that costs follow the event 13. It was accepted by both sides that the general rule on costs is that costs follow the event. This is the http://www.kenyalaw.org - Page 6/11