Balancing Court Costs: Rai on Fair Access to Justice

Winning a case does not always mean the other side must pay every cost. That is the practical lesson of Rai v Rai, but it is also the point most easily oversimplified. Kenyan civil procedure begins from the familiar rule that costs ordinarily follow the event. Rai did not abolish that principle. It explained why costs remain a judicial discretion and why the court must sometimes ask what fairness, public interest and access to justice require in the particular case.

The Rai litigation also teaches a second lesson about legal writing: cite the correct ruling. Petition No. 4 of 2012 produced several Supreme Court decisions. The 6 February 2013 ruling principally concerned recusal, quorum and necessity. The ruling that directly established the modern Supreme Court principles on costs was delivered on 4 March 2014. A publication that merges the two risks attributing a rule to the wrong decision.

Why the costs question arose

The underlying dispute was a long-running private family and commercial conflict. A petition reached the newly created Supreme Court, but the Court ultimately held that it lacked jurisdiction to entertain it. The successful respondents then asked for costs.

Ordinarily, that request would appear straightforward. Section 27(1) of the Civil Procedure Act states the general rule that costs follow the event unless the court, for good reason, orders otherwise. Section 21(2) of the Supreme Court Act separately empowers the Supreme Court to make ancillary or interlocutory orders, including orders as to costs.

The unusual feature was that the petitioners had approached the Supreme Court during a period of genuine uncertainty about the new Court’s jurisdiction. Their case failed because another Supreme Court decision had invalidated the statutory provision on which the jurisdictional route depended. The Court therefore had to decide whether losing in those circumstances should automatically carry an adverse costs order.

Costs are compensatory, not a punishment for losing

The Supreme Court held that costs normally reimburse a successful party for the expense of litigation. They are not supposed to punish a party simply because the party lost.

That distinction changes how a costs application should be argued. A successful litigant can legitimately say that substantial legal expense was incurred in answering a case and that the ordinary rule should apply. But the court still examines the character of the dispute, the parties’ conduct, whether the law was genuinely uncertain, whether the case served a public purpose and whether an adverse order would be unfair in the circumstances.

Rai therefore turns “costs follow the event” into a starting point rather than a mechanical ending. If the court departs from the ordinary rule, it should give reasons. Judicial discretion is not personal preference. It is a reasoned choice made within statutory purpose and constitutional values.

Access to justice matters, but it is not immunity from costs

Article 48 of the Constitution requires the State to ensure access to justice. Costs can affect that right even though they are usually imposed at the end of proceedings. A person deciding whether to bring an important constitutional or public-interest case may be deterred by the possibility of a very large adverse costs order.

Rai recognises that concern without creating a blanket exemption. A constitutional label does not give a litigant immunity from costs. Frivolous, abusive, dishonest or needlessly prolonged proceedings may properly attract an adverse order. The relevant question is whether the costs decision serves fairness and the proper administration of justice rather than merely penalising failure.

This is particularly important in public-interest litigation. Courts may decide that each side should bear its own costs where a case responsibly raises a novel question of general importance. On the other hand, public-interest language should not be used to protect litigation pursued for private advantage or in a manner that wastes judicial resources.

The 2013 recusal ruling should be kept separate

The earlier 2013 Rai ruling remains important, but for a different reason. It dealt with an application asking Justice Philip Tunoi to recuse himself. His withdrawal would have left the Supreme Court without the constitutional quorum of five judges required by Article 163(2).

The majority declined recusal on the facts and considered the doctrine of necessity. Justice Ibrahim dissented. That ruling is useful for objective recusal standards, public confidence and the exceptional problem of an apex court that would otherwise be unable to sit.

It should not be cited as though it were the source of the 2014 costs doctrine. For courtroom credibility, counsel should identify the exact date and proposition. A costs submission should ordinarily rely on [2014] KESC 31. A recusal submission may rely on [2013] KESC 20. A jurisdictional proposition from the same petition may require the separate August 2013 ruling.

Current Supreme Court procedure still preserves costs discretion

The current Supreme Court Rules 2020, as amended in 2025, provide a modern procedural framework for fees and costs. They allow costs to be assessed by the Court, taxed by the Registrar or determined by consent, and they also permit personal costs consequences where an advocate or representative has caused costs improperly, without reasonable cause, through undue delay or misconduct.

Those provisions reinforce rather than displace Rai. The modern rules make administration of costs more detailed, but the underlying judicial character remains. The Court decides whether costs should be awarded; the Registrar may tax the amount; and misconduct can affect who ultimately bears expense.

For ordinary civil litigation, section 27 of the Civil Procedure Act also continues to matter. Rai should therefore be read as a Supreme Court explanation of the purpose and exercise of costs discretion, not as a free-standing replacement for the legislation governing the particular court.

How to argue costs practically

A party asking for costs should explain more than the fact of success. The application or submissions should identify the work made necessary by the case, any unreasonable conduct by the opponent, unnecessary applications, delay, failure to comply with orders or other circumstances supporting the ordinary rule.

A party resisting costs should also be concrete. Good reasons may include genuine novelty, public importance, a responsible effort to clarify uncertain law, mixed success, conduct by both sides that contributed to expense or a serious access-to-justice concern. Simply saying “this was a constitutional case” is not enough.

For judges, reasons are crucial. A brief explanation of why the ordinary rule is being applied or displaced makes costs decisions more predictable and reviewable. It also helps litigants understand whether the order is compensating success, responding to misconduct or protecting a legitimate public-interest claim.

Why Rai still matters

Rai remains useful because it keeps three ideas in balance. Successful parties should ordinarily be compensated for the costs of litigation. Courts must retain discretion to prevent that rule from producing injustice. And the prospect of costs should not become an indiscriminate barrier to legitimate access to court.

The case also shows why precedent must be handled with precision. A famous case name can contain several different rulings. The legal writer’s task is not merely to cite “Rai v Rai” but to identify which judgment decided which issue.

For the ordinary reader, the message is simple. Losing a case does not automatically mean the court thinks the claim was blameworthy. Costs are a separate judicial decision. The court begins with the usual rule, examines the circumstances and must exercise its discretion for reasons connected to fairness, compensation and the proper administration of justice.

Source note

This article is based principally on Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR) on costs, with reference to Rai & 3 others v Rai & 4 others [2013] KESC 20 (KLR) on recusal and quorum, Article 48 and Article 163 of the Constitution of Kenya 2010, section 27 of the Civil Procedure Act, section 21(2) of the Supreme Court Act, and the Supreme Court Rules 2020 as amended in 2025.

Suggested citation: 

Ronald Serwanga, “Balancing Court Costs: Rai on Fair Access to Justice” East Africa Legal Insight (9 September 2026).