[2004] KEHC 1147 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL CASE NO. 146 OF 2004

JOEL K. KIBIWOTT………...…………….……..1ST PLAINTIFF

WILSON KIPTANUI ROTICH………….………2ND PLAINTIFF

STEPHEN K. BUSIENEI…….….………..….…...3RD PLAINTIFF

PAUL K. A. SOMOEI……..…………..………….4TH PLAINTIFF

SAMWEL M. TUWEI & 356 OTHERS..…….….5TH PLAINTIFF

VERSUS

THE REGISTERED TRUSTEES OF

MONASTRY OUR LADY OF VICTORY…………DEFENDANT

RULING

By chamber summons made under Order XXV Rule 1 of the Civil Procedure Rules, the Defendant has sought the orders of this Court to compel the Plaintiffs to provide security for the Defendant’s costs in the sum of Kshs. 500,000/=. The Application is based on the grounds stated on the face of the Application. The Defendant contends that it is the registered owner of the suit land; that none of the Plaintiffs is in possession any part of the suit land and finally that the Plaintiffs’ suit is frivolous vexatious and an abuse of the due process of the Court.The Application is supported bythe annexed affidavit of Father Stefano Rwegarulira, the deputy superior of the monastry. In relevant part of his affidavit, he has deponed that the Defendant did not know any of the Plaintiffs and therefore the Defendant would be unable to recover the costs awarded to it should it succeed in having the suit filed against it dismissed. The Defendant has deponed that the Plaintiffs have not given their particulars including their physical addresses in the pleadings filed in Court. The Application is opposed. Five of the Plaintiffs have sworn replying affidavits opposing the Defendant’s Application. Of particular relevance to the application, is the replying affidavit sworn by Joel K. Kibiwott, the 1st Plaintiff. In his replying affidavit he has deponed that the Plaintiffs were people of means and could pay the costs to the Defendant were the suit filed be unsuccessful. The 1st Plaintiff has further deponed that the Plaintiffs are Kenyan citizens, who cannot be said to be unknown and therefore are traceable. The 1st Plaintiff further deponed that the Plaintiffs had been ordered to deposit a sum of Kshs 250,000/= in a previous suit which they had filed against the Defendant and which suit the Plaintiffs had decided to withdraw.

At the hearing of the Application, Mr Githua, Learned Counsel for the Defendant submitted that the Plaintiffs were 358 in number and were not resident on the said suit property. The Defendant was apprehensive that should the suit filed by the Plaintiffs be dismissed, the Defendant would be unable to recover the costs that would be due to it. The Defendant submitted that the Plaintiffs’ suit did not have any chance of succeeding and there was a high probability that the Plaintiffs’ suit against the Defendant would be dismissed. Mr Githua urged the court to order that the Plaintiffs do furnish the security for costs before they are allowed to fix this case for hearing.

Mr Tarus, Learned Counsel for the Plaintiffs submitted that the Defendant had not established that the Plaintiffs would be unable to pay the costs awarded were the suit filed by the Plaintiffs dismissed. Mr Tarus reiterated the contents of the replying affidavits filed by the Plaintiffs. He submitted that the Plaintiffs had deposited the sum of Kshs 250,000/= in a previous suit filed by the Plaintiffs’ against the Defendant which sum was still deposited in Court. Learned Counsel submitted that the said amount could be considered as security for costs for this suit. Learned Counsel further submitted that the Defendant had not proved that their application fell within the ambit of the rules that require security for costs to be provided. The Plaintiffs submitted that if they would be ordered to pay the security for costs they would be placed in a disadvantageous position and further that they would be prejudiced in the prosecution of their case. The Plaintiffs further submitted that if security is ordered to be deposited, then the Plaintiffs should be ordered to execute a bond in lieu of depositing cash in court. Otherwise the Plaintiffs prayed that the Defendants application be dismissed.

I have considered the rival arguments made by counsel for the Plaintiffs and counsel for the Defendant. I have read the pleadings filed the parties in respect of this application and also considered the two decided cases refereed to by the Plaintiffs. For a party to succeed in an application to have the opposing party be ordered to provide security for costs, he has to prove that the opposing party may not be in a position to pay the costs to be awarded in the event that the suit filed by such a party(or defended by such a party ) is dismissed. In the present application the Defendant has stated that it would be unable to secure the payments of its costs if the Plaintiffs were to be unsuccessful in their suit. The Defendant has submitted that the sheer number of the Plaintiffs would make it impossible to recover the costs that may be awarded. The Defendant has further submitted that the Plaintiffs were unknown to it the Plaintiffs having not provided their physical addresses in their pleadings.

When confronted with this argument, the Plaintiffs submitted that they were Kenyan citizens who could easily be traced were costs to be awarded against them. The Plaintiffs further submitted that the Defendant’s application did not fall within the ambit ofOrder XXV of the Civil Procedure Rules. From the submission made before me, it is evident that the Plaintiffs had filed a previous suit against the Defendant which suit had been withdrawn. The said suit was Nakuru HCCC No. 793 of 1993. In the said suit the Plaintiffs had been ordered to deposit the sum of Kshs 250,000/= as security for costs. The Plaintiffs deposited the said amount ordered. Now the Plaintiffs have filed another suit. The Defendant has made a similar application to have the Plaintiffs provide security for costs. During the hearing of the Application the Plaintiffs did not tell the court why they thought the current applicant should not be allowed while a similar application made in a previous similar suit was allowed.

On evaluating the arguments made in this application, I do find that the Defendant is justified in seeking that the Plaintiffs provide security for costs. The fact that the Plaintiffs are 358 in number is sufficient reason for the order for security of costs to granted. If the Plaintiffs were to lose the case, the Defendant would find it impossible to execute against the 358 Plaintiffs, especially in the circumstances of this case where the Defendant does not know where the Plaintiffs are resident. Further, when the Plaintiffs were served with the Application seeking that they provide security for costs, the Plaintiffs ought to have, as a matter of course, provided an affidavit of means stating that they were capable of paying the costs, if they were unsuccessful in their case.

In this case the Plaintiffs did not provide the required evidence that they would be in a position to pay the costs if the same was awarded against them. The Application filed by the Defendant therefore must succeed. The decisions of Farrab Incorporated –versus- Brian John Robson & Anor [1957] E. A. 441andVallabdas Hirji Kapadia –versus- Thakersey Laxmidas [1960] E. A. 852 are distinguishable in that they related to a situation where the party sought to provide security for costs was residing outside the jurisdiction of the Court. In the present application, the issue is the inability of the Plaintiffs to pay the costs, if they were to be ordered to pay by this Court.

In the circumstances therefore the Plaintiffs are ordered to deposit in Court the sum of Kshs 500,000/= as security for costs within forty five (45) days from today’s date. The Defendant shall have the costs of this application.

DATED at NAKURU this 19th day of November 2004.

L. KIMARU

AG. JUDGE