[2014] KEHC 94 (KLR)

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL APPEAL NO. 158 OF 2009

FESTUS NYAMBEKA ……………………………. APPELLANT

VERSUS

TEXCO SPINNING MILLS …………………….. RESPONDENT

R U L I N G

Festus Nyambeka (the appellant), filed a suit No. 869/2003 Festus Nyambeka V Texco Spinning Mills Ltd (the Respondent) seeking damages for injuries sustained in an industrial accident. The suit was dismissed with costs to the Respondent. The appellant preferred this appeal challenging the decision of the trial magistrate. The Memorandum of Appeal was filed on 20/7/09 and Record of Appeal was filed on 20/7/2011. On 17/1/2012 the Respondent filed the application dated 16/1/2012 pursuant to order 26 Rule 1 of the Order 51 Rule CPR – 53A CPA, seeking an order that the appellant do provide security for the whole of the costs of this appeal and costs of the Lower Court CMCC 869/03. The grounds upon which the application is premised are that CMCC 869/03 was dismissed by the trial court; that the Respondents costs in 869/03 were taxed at Ksh.28,350/=; that despite demand, the appellant has been unable to pay the said sum; that if the appeal is not allowed the Respondent will not be able to recover costs of the appeal and costs of the lower court; that the motion is also supported by the affidavit of Mr. Dilipsinh Mahida counsel for the Respondent. The appellant swore a replying affidavit in which he averred that the application is premature given that the directions have not been taken; that the application is meant to frustrate the applicant in pursuing the appeal; that no good reason has been given for the application; that the appeal is not hopeless and the appellant stands to suffer loss if the orders are granted and respondent will not suffer any loss. Lastly, that the Notice of Motion is meant to delay the prosecution of the appeal.

Both Mr. Mahida, Counsel for Respondent ant Mr. Gatonye Counsel for the appellant, filed submissions. The appellant relied on the case of Hawkwind Corporation V Africa Marine & General Engineering Co. Ltd HCCC NO. 40 of 2008(2012) in which J. Mwongo set out the guidelines to be considered whether to grant or refuse an order for security for costs.

I have carefully considered the application and arguments of both counsel. The award of an order of security for costs is the exercise of the court’s discretion. Order 26 Rule (1) provides:-

“In any suit the court may order that security for the whole or any part of the costs of any defendant or third or subsequent party be given by any other party.”

The use of the word “may” connotes that the grant of the order by the court is discretionary”.

Why is an order for security of costs necessary? In HCCC 4616/1999 Pan African Bank Ltd Vs Jasop Ltd, Abraham Kiptanui & Another (interpates) the court held:-

“a decision whether to order a party to furnish security for costs or a decline such an order is in the discretion of a judge. The discretion is a judicial one, exercised on sound principles in light of the circumstances of a case. … The object … is clearly to provide the protection of defendants in certain cases where in the event of success, they may have difficulty in realizing their costs of the suit.”

In the exercise of its direction in such an application, the court has to consider the following:-

(1) That the plaintiff will be unable to meet an order for costs if the Respondent succeeds;

(2)That the plaintiff ordinarily resides outside the jurisdiction of the court;

(3)That the party moving the court for security has not delayed too long in the proceeding before making the application;

(4)Whether an order is made it would effectively shut any party, out of the relief in circumstances where the party’s impecunity may be cured by the litigation.

As regards where the appellant resides, the Record of Appeal does have the plaint and testimony of the appellant in the trial court. He ordinarily resides in Kenya and there is no possibility of him leaving the jurisdiction of this court to avoid payment of costs.

Has the Respondent delayed in bringing this application? The Memorandum of Appeal was filed on 20/7/2009 and the record of appeal was filed on 20/4/2011. This application was not filed until 17/1/2012, 9 months after the record of appeal was filed. The Respondent has not explained the delay in bringing this application. If indeed the Respondent feared that they will not recover their costs, then that fear must have been manifest once the appeal was filed. Once the record of appeal was filed the parties only needed to take directions before a hearing date could be taken for hearing of the appeal. I have noted from the file that the matter came up for directions on 21/9/2011, 2/1/2012, 17/2/2012, 9/3/2012 and when the last date was taken, it seems the instant application was filed too. It is not clear why the file was never placed before a judge on any of those occasions for directions. It is however clear that the appellant’s counsel had made attempts to have directions taken. This application has contributed to the delay in the disposal of this appeal because since it was filed, it has come up 6 times between 12/2/2012 to 12/3/2014 – a period of 2 years. Directions would not have been taken before the instant application was disposed off.

The main reason for seeking the order for costs is that the appellant has been unable to pay the lower court costs and that the appellant is a man of straw having admitted in his pleadings that he is a peasant. The court in considering this application has to carefully balance the rights of both parties so that such an application is not used to stifle the rights of the less privileged party. In HC 27/00, (OS) John Francis Muyodi V Peter Lunani Ongoma & Another, the court observed.

“However, the court has a wide discretion whether or not to order security or not. There is no burden one way or the other but it will depend on the circumstances of each case. It should be borne in mind that the court should consider whether the application for costs was commenced with a view to being used to oppress, so as to try and stifle a genuine claim:….”

In the instant case requiring the appellant to pay security for costs because he is a peasant is tantamount to denying him his right of appeal. Having weighed the applicant’s grounds and the response thereto, I find that this is not one of those cases where it should exercise its discretion to grant the order sought. The appellant must be allowed to prosecute his appeal without being stifled. For all the foregoing reasons, the Notice of Motion dated 11/1/2012 is not merited. It is dismissed with costs abiding the appeal.

DATED and DELIVERED this 28th day of March, 2014.

R.P.V. WENDOH

JUDGE

PRESENT:

Mr. Nyambane for the applicants

N/A for the respondents

Lydia – Court Assistant