[2017] KEHC 8133 (KLR)
The court determined that since the 1st and 2nd respondents were represented by one counsel and filed a joint bill of costs, and given that the 2nd respondent was an agent of the 1st respondent, it would not be reasonable to allocate separate shares of the security for costs to each. Instead, the sum of Kshs....
Source-derived case information.
- Citation
- [2017] KEHC 8133 (KLR)
- Parties
- Applicant: Martin Sarakwe Wechuli; Respondent: Independent Electoral and Boundaries Commission; Respondent: Bumula Constituency; Respondent: Bonface Okhiya Otsiula
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Petition 7 of 2013
- Procedural Posture
- Petition / Ruling on Distribution of Security for Costs
- Outcome
- Application allowed in part; security for costs to be shared equally between 1st and 2nd respondents jointly and the 3rd respondent.
- Legal Topics
- Security for Costs, Costs Award, Distribution of Costs, Taxation of Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martin Sarakwe Wechuli
Applicant
Independent Electoral and Boundaries Commission
Respondent
Bumula Constituency
Respondent
Bonface Okhiya Otsiula
Respondent
Procedural Posture
Petition / Ruling on Distribution of Security for Costs
Legal Issues
- 1 Whether the security for costs deposited in court should be shared equally among the three respondents.
- 2 Whether the relationship between the 1st and 2nd respondents justifies joint allocation of security for costs.
- 3 Whether the proposed sharing would prejudice the 3rd respondent.
Ratio Decidendi
The court determined that since the 1st and 2nd respondents were represented by one counsel and filed a joint bill of costs, and given that the 2nd respondent was an agent of the 1st respondent, it would not be reasonable to allocate separate shares of the security for costs to each. Instead, the sum of Kshs. 500,000/- held as security should be shared equally between the 1st and 2nd respondents together (as a unit) and the 3rd respondent, with Kshs. 250,000/= to the 1st and 2nd respondents jointly and Kshs. 250,000/= to the 3rd respondent. This approach avoids prejudice and reflects the actual relationship and cost awards among the parties.
Court Disposition
Application allowed in part; security for costs to be shared equally between 1st and 2nd respondents jointly and the 3rd respondent.
Orders
- The sum of Kshs. 250,000/= to be paid to the 1st and 2nd respondents jointly.
- The sum of Kshs. 250,000/= to be paid to the 3rd respondent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
PETITION CASE NO. 07 OF 2013
MARTIN SARAKWE WECHULI ………..…………………….....PETITIONER
VERSUS
INDEPENDENT ELECTORAL
AND BOUNDARIES COMMISSION…..……………….....1ST RESPONDENT
BUMULA CONSTITUENCY…………………..……….....2ND RESPONDENT
BONFACE OKHIYA OTSIULA ………………………..…3RD RESPONDENT
RULING
1. The application before court is by way of Notice of Motion dated 16th November, 2015 by the 1st and 2nd respondents seeking to have the security deposited in court be shared equally among the 3 respondents in the sum of Kshs. 166,666/= to each so that the sum of Kshs. 333,332/= would be paid out to the 1st and 2nd respondents counsel.
2. The application was opposed in part by the 3rd respondents by way of a replying affidavit. The objector is to the extent that the 1st and 2nd respondents employed one counsel, filed one bill of costs and the proposed sharing would prejudice the 3rd respondent.
3. The 1st and 2nd respondents filed a joint bill of costs dated 17th March, 2014. Upon hearing the matter the taxing officer jointly awarded the 1st and 2nd respondents costs amounting to Kshs. 890, 214/= in total.
4. The 3rd respondent equally filed his bill of costs filed on 17th April, 2014 and the court awarded him costs of Kshs. 809,558/=.
5. It is not lost to the court that the 2nd respondent was an agent of the 1st respondent and sued as such.
6. With the above background, I am of the view that the amount being held as security for costs being amounts due to the parties as their costs cannot possibly go to each of the parties in view of the relationship between the 1st and 2nd respondents. It would therefore be reasonable to share the sum of kshs. 500,000/- between 1st and 2nd respondents together and 3rd respondent separately for avoidance of doubt the sum of Kshs. 250,000/= to go to the 1st and 2nd respondents and the other half being Kshs. 250,000/= to go the 3rd respondent.
DATED AND DELIVERED AT BUNGOMA THIS 19TH DAY OF JANUARY, 2017.
ALI-ARONI
JUDGE.