[2019] KEHC 4571 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT ELDORET

CIVIL APPEAL NO. 30 OF 2015

GRACE AKUMU OMOLLO……..........………………………. APPELLANT

VERSUS

ROSE OYONDI…………..………………………………. 1ST RESPONDENT

OYONDI GANYE……………………………………….. 2ND RESPONDENT

RULING

What is before me is a Notice of Motion application by the respondents dated 5th April 2017 in which the applicants seek the following orders: -

1. That, the court order the appellant to furnish security for costs of the appeal within the prescribed period of time pending the hearing and determination of the appeal.

2. That, in default, the appeal be dismissed with costs.

3. That, costs of this application be granted to the respondents.

The appellant, Grace Akumu Omollo, being dissatisfied with the findings of the lower court, Edoret CMCC No. 13 0f 2013, filed an appeal before this court on 7th March 2017 against both the judgment and decree on quantum by the trial magistrate.

The respondents/applicants supported their application vide their written submissions dated 20th July 2018 in which they claim that they had a consent with the appellant on 10th December 2014 in which they agreed to bear 80% liability as against the appellant’s 20%.

The applicants herein believe that the appellant has no known assets save for the decretal sum that they paid her. Further, they believe that the appellant is engaging in a fishing expedition and it is unlikely that the appeal herein will succeed.

They further submitted that the appellant has not furnished any document or proof to show that she is in a position to pay the costs should the appeal fail.

The appellant in her replying affidavit dated 5th June 2018 denies the existence of an agreement between her and the respondents as to the apportionment of liability in the said accident.

She believes that she has high chances of success in the appeal.

She also believes that no prejudice shall be occasioned upon the respondents as she is able to satisfy the costs of the appeal should it not go her way.

She further posits that allowing the application will only serve to impede delivery of justice, and relied on Article 159 of the Constitution.

Order 26 Rule 1 provides for the security for costs of the suit. Order 42 rule 14 provides for the security for costs of the Appeal.

It is trite law that security for costs can be ordered by a trial Court in its discretionary power. In the case of Marco Tools & Explosives Ltd V Mamujee Brothers Ltd, [1988] KLR 730 the court held:-

“….the Court has unfettered judicial discretion to order or refuse security. Much will depend upon the circumstances of each case, though the guidance is that the final result must be reasonable and modest”.

In an application for security of costs the Applicant must show that the Plaintiff will not be able to satisfy an order for costs made at the end of trial.

In the case of Europa Holdings Limited Vs Circle Industries (UK) BCLC 320 CA, it was held that it must be proved that the Plaintiff would not be able to pay the costs at the end of the case. Mere inability is not enough. Secondly the Court must satisfy itself that it will be just to make the order for costs on the facts and circumstances of the case.

In the case of Gatirau Peter Munya Vs Dickson Mwenda Githinji & 2 Others, CA No. 38 of 2013 [2014] eKLR, the Appex Court emphasized that in an application for further 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 onus is on the Applicant to prove such inability or lack of good faith that would make an order for security reasonable.”

Having gone through both the written submissions of the applicants and their replying affidavit, I am not satisfied that the applicants have proved to the satisfaction of this court that the appellant may not be in a position to meet the cost of the appeal should it not go her way. I also find that the

Kshs. 500,000/= prayed for by the applicants as the security is unreasonably high considering that the award of Kshs.350,000 was given at the lower court.

I am also not equally satisfied that the appellant proved that she is in apposition to meet the cost of the appeal.

In exercise of the court’s discretion, in line with Order 42 of the Civil Procedure Rules, I decline to grant the Kshs. 500,000 security prayed for by the applicants. However, to ensure fairness to both sides, and to avoid the adversity that may be occasioned on the applicants should the appeal fail, I order that the appellant do deposit a security of Kshs. 200,000/= pending the hearing and determination of the appeal. The said amount be deposited in an interest earning joint account in the name of both side Advocates.

S. M GITHINJI

JUDGE

DATED, SIGNED and DELIVERED at ELDORET this 9th day of July, 2019

In the presence of:

Mr. Simboye holding brief for Mr. Ombima the appellant

Mr. Babu for the respondent

Ms. Sarah – Court assistant