[2011] KEHC 195 (KLR)
The court found that payment of the decretal sum, whether by installment or otherwise, does not amount to security for costs. Security for costs is a separate requirement intended to ensure that the respondent is protected against the risk of being unable to recover costs if the appeal fails. The court exercised its...
Source-derived case information.
- Citation
- [2011] KEHC 195 (KLR)
- Parties
- Appellant: Moses Munyui; Respondent: Ricarda W Mwangi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 835 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Application for Security of Costs Pending Appeal
- Outcome
- Application for security for costs allowed; appellant ordered to provide Ksh. 20,000 as security within 60 days; costs of the application awarded to the applicant/respondent.
- Legal Topics
- Security for Costs, Stay of Execution, Appeals Process, Partnership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Munyui
Appellant
Ricarda W Mwangi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Security of Costs Pending Appeal
Legal Issues
- 1 Whether the appellant should be ordered to provide security for costs pending the determination of the appeal.
- 2 Whether payment of the decretal sum by installment constitutes security for costs.
- 3 What is the appropriate quantum and form of security for costs in the circumstances.
Ratio Decidendi
The court found that payment of the decretal sum, whether by installment or otherwise, does not amount to security for costs. Security for costs is a separate requirement intended to ensure that the respondent is protected against the risk of being unable to recover costs if the appeal fails. The court exercised its discretion to order security for costs, considering that the amount should not be so high as to prevent the appellant from pursuing the appeal. The court therefore ordered the appellant to provide partial security for costs in the sum of Ksh. 20,000, to be paid in cash or by bank guarantee within 60 days, with liberty to apply. Costs of the application were awarded to the...
Court Disposition
Application for security for costs allowed; appellant ordered to provide Ksh. 20,000 as security within 60 days; costs of the application awarded to the applicant/respondent.
Orders
- Appellant/original defendant to provide security for costs in the sum of Ksh. 20,000 in cash or by bank guarantee within 60 days.
- Parties at liberty to apply.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CIVIL APPEAL NO. 835 OF 2007
MOSES MUNYUI.......................................................................................APPELLANT/ORIGINAL PLAINTIFF
VERSUS
RICARDA W MWANGI .........................................................................RESPONDENT/ORIGINAL PLAINTIFF
(Being an appeal against the entire judgement of the Resident Magistrate, Mr Kiema at Milimani Commercial Courts CMCC No. 1505 of 2004)
R U L I N G
Application – Security of Costs
12th January 2011
I.INTRODUCTION
1. In this commercial matter, the parties had entered into an agreement to purchase a printing machine Gestner valued at Ksh. 150,000/= and operate the same in a partnership business.
2. Ricada W Mwangi, the respondent/original plaintiff sued Moses Murigu, the appellant/original defendant for selling the said machine without her consent. She alleged to have contributed Ksh. 135,000/= which the respondent had contributed Ksh. 15,000/= only. She only prayed the machine be returned to her, alternatively, the sum of Ksh. 135,000/= at the interest rate of 22% be made.
3. On being heard in the subordinate court and judgment was entered in favour of respondent/original plaintiff. Not having satisfied with this decision, the appellant original defendant filed this current appeal.
4. Nonetheless, execution in the subordinate court proceeded for hearing. There was objection proceedings taken out, at one point, by third parties represented by M/s Ongega & Co Advocate.
5. The appellant/original defendant filed an application dated 15th November 2007 for stay of execution pending appeal. The respondent filed an application two years or thereabouts later for orders that the decretal sum be deposited to court now amounting to Ksh. 401,055/75 inclusive of costs. The application was dated 23rd January 2009.
6. The Hon. Magistrate overruled the objection that the application of 15th November 2007 be heard first on grounds that the plaintiff’s application of 23rd January 2009 was conceeding to the issue of stay of execution. Orders were accordingly made that the decretal sum be deposited to court (pending the hearing of the appeal.)
7. The appellant/respondent was unable to comply with the court’s orders. He asked the new magistrate handling the execution proceedings, whether he could deposit Ksh. 30,000/= and pay by installments. This application would normally be made in writing through a formal application but appears not to have been so done. The Hon. Trial Magistrate then allowed the request but ordered a sum of Ksh. 30,000/= per month be paid on every 5th day of the month. The respondent defaulted in payment. From the High Court file , I see only a total of Ksh. 50,000/= had been paid and the said sum released to the respondent/original plaintiff by consent of the parties.
8. The appellant/original defendant claimed that he paid a sum of Ksh. 140,000/=. The issue now remaining was for Ksh. 248,000/=, that was an issue of interest.
9. The respondent/original plaintiff who had been acting in person engaged a new advocate and applied that security of costs be accordingly provided for, by the respondent original defendant on this appeal.
IISECURITY OF COSTS
10. It was argued and implied by the appellant/original plaintiff was unable to be successful in his appeal. He may be a man of straw and as such should be made to provide security of cost for this appeal.
11. This application was opposed on grounds that most of the decretal sum had been paid.
IIIFINDINGS
12. This application was opposed on grounds that most of the decretal sum had been paid.
13. The issue herein is not security for the “due performance of such decree that may be binding on the appellant” but security of costs. This was what the applicant specifically asked for, security of costs of the appeal in the event the appellant/original defendant is not successful in his appeal.
14. This court is alive to the fact that payment of the decretal sum by installment or otherwise isn’t security of costs. It is also aware that such security of costs should not be so large as to put the appeal out of reach of the appellant.
15. The orders sought are discretory.
“At anytime 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.”
16. This court herein allows this application and orders that security for costs be partially provided by the appellant/original defendant to this appeal.
17. That a sum of Ksh. 20,000/- ordered paid in cash or bank guarantee within 60 days. Parties be at liberty to apply.
18. The costs of this application is awarded to the applicant/respondent/original plaintiff.
Dated this 4th Day of October 2011 at Nairobi
M. A. ANG’AWA
JUDGE
Advocates:
i)D.O. Okindo instructed by M/s Rumba Kinuthia & Co Advocates for the appellant/ original plaintiff
ii)A.L. Karim holding brief for M/s Ramesh Patel & Co Advocates for the respondent/original defendant