State ordered to pay Nyong'o, others Sh33 million as court quashes appeal

The Court of Appeal has reinstated a High Court order compelling government to pay Prof Anyang' Nyong'o and others over Sh33 million legal costs, awarded by the East African Court of Justice.

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In a judgment delivered on February 6, the appellate bench overturned a High Court decision that had sided with the Attorney General’s claims of potential double payment.

Justices Gatembu Kairu, Pauline Nyamweya and Joel Ngugi instead found the state had failed to meet the legal thresholds required to review a final court order.

The case stretched back to 2006, following a landmark challenge against the Kenyan government’s process for nominating representatives to the East African Legislative Assembly.

The petitioners successfully argued that the nomination process was undemocratic and violated the Treaty for the Establishment of the East African Community.

By March 2007, the regional court ruled in favour of the petitioners.

This resulted in a taxed costs award of over $2 million (Sh258 million). A subsequent and separate legal costs claim, arising from related litigation, was taxed at $256,802.24 (Sh33,127,488.96) in 2011. It is this second, smaller certificate that became the subject of the recent appeal.

While the High Court initially adopted the costs for execution in March 2017, the Attorney General successfully moved the same court a year later to review and set aside that order.

The state had argued that new evidence and errors on the record justified a reversal, freezing the payment for several more years.

In 2018, High Court judge Joseph Sergon reviewed and set aside his own ruling after the Attorney General filed an application arguing that enforcing the second certificate would amount to double payment.

However, the Court of Appeal found that the judge's decision to grant that review was flawed and lacked a proper evidentiary basis.

Furthermore, the court disagreed with the Attorney General’s claim of “discovery of new and important matter,” ruling that the government was aware of the earlier payment.

“A party cannot withhold or fail to deploy facts within its knowledge in opposition to an application, suffer an adverse ruling and later rebrand those same facts as “newly discovered” so as to obtain a second bite at the cherry through review.”

The court also found the application was filed after an "inordinate delay" of over a year without a satisfactory explanation on record, which also worked against the appellant.

The 2018 ruling was set aside and the original 2017 order for the adoption and enforcement of the Sh33 million EACJ costs certificate reinstated.

The government was also ordered to bear the costs of the appeal.