https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8152

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MAKUENI** **HIGH COURT FAMILY CIVIL APPEAL NO. E004 OF 2024** **IN THE MATTER OF THE ESTATE OF KAVIVYA MULI** ***(Being an Appeal from the Ruling and Order issued on 23rd May 2024 and Order issued on 2nd November, 2023 by Hon. P.N. Gesora – Chief Magistrate in the Chief Magistrates Court at Makueni in Succession Cause No. 127 of 2018)*** **STEPHEN MUTINDA MWAU……………………................ APPELLANT/RESPONDENT** **-VERSUS-** **BENSON KITETU & 97 OTHERS………….........................RESPONDENT/APPLICANTS** **RULING** 1. The Application for determination is dated 07/08/2025 and was filed under Certificate of Urgency. It is brought under **Sections 3A & 3B** of the **Civil Procedure** **Act** and all other enabling provisions of the law. It seeks; 2. Spent. 3. That pending the hearing and determination of the appeal herein, the Appellant be and is ordered to deposit in this court Kshs. 350,000/= security of costs within 14 days and in failure to do the same, the appeal herein to stand being dismissed and or subsequent orders to lapse with costs to the Applicants/Respondents. 4. Costs of this application be provided for. 5. The Application is supported by the grounds on its face and the affidavit of Benson Kitetu sworn on the same day. He deposed that he has authority of 97 Others hence competent to swear the affidavit. That, the Appellant appealed against the ruling of Hon. P.N Gesora issued on 23/05/2024 and is enjoying subsequent *ex-parte* orders of injunction without having deposited any surety or security of costs as is the norm. 6. That, the Applicants have used colossal amounts of money as legal fees in both the Makueni Chief Magistrate Court and this Honorable Court. That, the appeal is very weak and has very slim chances of succeeding. That, though the requirement that the Appellant must deposit security of costs is at the discretion of the Honorable Court, history and precedence dictates that the same should be awarded before the appeal is admitted and subsequent orders issued. 7. That, the Applicants are apprehensive that the Appellant may never be able to pay the costs of appeal herein and costs incurred in the Magistrate’s Court. 8. The application is opposed through the Replying Affidavit of Stephen Mutinda sworn on 03/02/2026 where he deposed that; he is the Appellant hence competent to swear the affidavit. That, the application is unmerited, frivolous and a waste of this court’s precious time. That, according to advice from his Advocates which he verily believes to be true, an order for security of costs ought to have been handled together with the application for stay of execution which was determined by this court on 05/12/2025 as per the ruling exhibited as **SMM-1**. That, an order for security for costs is grantable only at the discretion of court and this court did not see a reason to make the order in its ruling of 05/12/2025. 9. That, the subject matter of these proceedings is a family matter involving the estate of a deceased person where some beneficiaries are claiming their share hence security for costs is not applicable. His belief is that this application has been filed only to delay the just conclusion of the appeal. 10. The Application was canvassed through written submissions. 11. Reference was made to **Order 26 Rule 1** of the **Civil Procedure Rules** for the submission that the court may order security for costs where it appears just to do so. That, the rationale behind security for costs is to protect a successful litigant from the risk of being unable to recover costs. Reliance was placed on the case of **Marco Tool & Explosives Ltd -vs- Mamujee Brothers Ltd (1988) KLR 730** where the Court of Appeal stated; **“The purpose of security for costs is to ensure that a successful litigant is not left without remedy in recovering the costs incurred in litigation.”** 1. Further reliance was placed on the case of **Shah -vs- Shah (1982) KLR 95** where the Court of Appeal held that; **“The court has unfettered discretion to order security for costs where it is just to do so.”** 1. It was submitted that the applicants have established sufficient grounds to warrant exercise of the court’s discretion in their favor. That the appellant is enjoying *ex-parte* orders without providing security hence exposing the Applicants to prejudice should the appeal fail. Reliance was placed on the following cases; 2. **Ocean View Beach Hotel Ltd -vs- Salim Sultan Mollo & 5 Others (2012) eKLR** where the court stated; **“security for costs is intended to ensure that a defendant who successfully defends a claim will be able to recover the costs incurred.”** 1. **Gatirau Peter Munya -vs- Dickson Mwenda Githinji & 2 Others (2014) eKLR** where the court affirmed that security for costs protects litigants from the risk of unrecoverable litigation expenses. 2. **Keary Developers Ltd -vs- Tarmac Construction Ltd (1995) 3 All ER 534** where the court stated; “The court should balance the injustice to the plaintiff if prevented from pursuing a claim against the injustice to the defendant if unable to recover costs. 3. It was submitted that the amount of Kshs. 350,000/= as security for costs is reasonable considering the complexity of the dispute, the number of parties involved, the duration of litigation and legal costs incurred in two courts. 4. In conclusion, it was submitted that the overriding objective under **Sections 1A** and **1B** of the **Civil Procedure Act** requires courts to facilitate just and fair determination of disputes. 5. It was submitted that the application is based on apprehension, fear and suspicion of the Appellant being unable to pay costs if the appeal fails but no evidence has been adduced to show that indeed the Appellant would be unable to meet his costs. It was contended that he who alleges the existence of facts must prove to the satisfaction of court that those facts exist. 6. It was submitted that the question of ordering that security for costs be availed is at the discretion of the court and the court can only exercise this discretion if it is satisfied that the Respondent is unable to pay costs due to some reason such as poverty. That, it is upon the Applicant to satisfy the court as to the Respondent’s inability to pay costs. Reliance was placed on the case of **Gulf Energy Transporters -vs-Ismail & Another (Civil Appeal E101 of 2021) [2023] KEHC 274 (KLR) (20 January 2023) (Ruling)** where the court stated; **12.In the premises, the onus was on the 2nd respondent, having sought the exercise of discretion, to provide a basis for the exercise of such discretion. Indeed, in Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 others (*supra*) it was held that:** **“In an application for security for costs, the applicant ought to establish that the respondent, if unsuccessful in the proceedings, would be unable to pay costs due to poverty. It is not enough to allege that a respondent will be unable to pay costs in the event that he is unsuccessful. The same must be proven. See Hall vs Snowdon Hubbard & Co (I), (1899) 1 Q B 593, the learned Judge at page 594 stated:-** **“The ordinary rule of this court is that, except in applications for new trials, when the respondent can show that the appellant, if unsuccessful, would be unable through poverty to pay the costs of the appeal, an order for security for costs is made.” In Marco Tool & Explosives Ltd vs Mamujee Brothers Ltd (*supra*), this court expressed itself thus: - “The onus is on the applicant to prove such inability or lack of good faith that would make an order for security reasonable.”** 1. It was submitted that this court, vide the ruling delivered on 05/12/2025, did not deem it fit to order that the Appellant avails such security for costs before proceeding with the appeal. That, the Applicants did not raise the issue of costs in that application. 2. It was submitted that the appeal concerns the right of beneficiaries of a deceased person to inherit from the estate and it would be unfair and unjust to order the Appellant to deposit security in a family matter. It was contended that Kenyan courts have over the years been reluctant to order security for costs in family matters. 3. Having looked at the application, response and rival submissions the only issue for determination is: whether an order for security for costs should be given. 4. **Order 42 Rule 14** of the **Civil Procedure Rules** provides as follows; **(1) At any time after the memorandum of appeal has been served the court, in its discretion, may order the appellant to give security for the whole or any part of the costs of such appeal.** **(2) If the appellant is not ordinarily resident in Kenya and has no sufficient property in Kenya (other than property to which the appeal relates) the court shall order the giving of security for the whole or part of the costs of the appeal within a time to be limited in the order.** **(3) If security for costs is not given within the time ordered the court may dismiss the appeal.** 1. It is therefore evident from the above provision that a court has discretion to order an Appellant to give security for costs of an appeal. The jurisprudence from our courts is that an Applicant should establish the Appellant’s inability to pay costs if unsuccessful in the appellate proceedings. In [**Johnstone Muchemi Gichema -vs- Moses Wekesa**](http://kenyalaw.org/caselaw/cases/view/150035) **[2017] eKLR** the court **(Joel Ngugi J-as he then was)** summarized the applicable principles as follows; **“Our case law has established the contours and principles the courts used to determine when the courts will use their discretion to order payment of security for costs. The following are germane:** * 1. **First, the rule gives the court discretion to order security for costs but the discretion must be used judiciously not whimsically. In particular, the court must be careful to balance between the need for access to justice for the appellant and the need to ensure that a successful respondent is not unduly disadvantaged...** 2. **Second, some of the factors that the courts consider include “absence of known assets within the jurisdiction of court; absence of an office within the jurisdiction of court; insolvency or inability to pay costs; the general financial standing or wellness of the plaintiff; the bona fides of the plaintiff’s claim; or any other relevant circumstance or conduct of the plaintiff or the defendant. And the list is not, and I do not pretend to make it exhaustive. In the latter category, conduct by the plaintiff will include activities which may diminish the chances of or makes recovery of costs very difficult, for instance recent close or transfer of bank accounts, close or minimizing of operations, and disposal of assets. And the conduct of the defendant includes, filing of application for security for costs as a way of oppressing or obstructing the plaintiff’s claim, for instance, where the defence is mere sham, or there is an admission by the defendant of money owing except there is deliberate refusal or delay to pay money owing or refusal to perform its part of the bargain” per Gikonyo J in Saudi Arabian Airlines Corporation v Sean Express Services Ltd [2014] eKLR.** 3. **Third, in the exercise of its wide discretion, a court might still refuse to order lodgment of security even where an individual litigant is impecunious or company insolvent. See Saudi Arabian Airlines Corporation Case (*supra*.)** 4. **Fourth, in an application for security for costs, the applicant ought to establish that the respondent, if unsuccessful in the proceedings, would be unable to pay costs due to poverty. It is not enough to allege that a respondent will be unable to pay costs in the event that he is unsuccessful.** 1. In our case, the Applicants deposed that they have used colossal amounts of money as legal fees and are apprehensive that the Appellant may be unable to pay the costs incurred in the trial court and this court. However, the Applicants have not adduced any evidence to demonstrate the Appellant’s inability to pay and have not even deposed that the Appellant is a man of straw. Furthermore, I have gone through the entire record and seen an application dated 12/02/2024 by the Applicants herein accompanied by an affidavit of Benson Kitetu where he deposed that the Appellant herein is a Police Officer attached to GSU Ruaraka. It is therefore highly probable that the Appellant is still in gainful employment. 2. In any event when the court gave stay orders, it was fully aware of the provision requiring deposition of security yet it did not find it prudent to do so. The Applicants had the opportunity to raise the issue but they did not. They are now seeking to direct the court to reopen the application and make fresh orders. I do not find any good reason to warrant such orders. Instead, parties should concentrate on expediting the appeal. 3. Consequently, it is my considered view that the Applicants have not established sufficient reasons to warrant the exercise of this court’s discretion in their favour. Application is therefore dismissed. Costs in the cause. Dated, signed and delivered virtually this **11th** day of **June 2026** ................................................ J.N.ONYIEGO **JUDGE**