[2016] KEHC 1778 (KLR)
The court found that the only asset of the estate of the deceased is the judgment sum, which has already been paid to the appellants. The appellants failed to provide credible evidence that the estate would be able to pay costs if the appeal is unsuccessful. The respondents' concern that the estate may be wound up...
Source-derived case information.
- Citation
- [2016] KEHC 1778 (KLR)
- Parties
- Appellant: Muli Muema Munyoli; Appellant: Josephine Munyiva Ndambuki (suing as the administrator and personal representative of the estate of the late Joseph Muthiani Mule); Respondent: Macharia Nguru; Respondent: Waki Clearing & Forwarding Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 423 of 2015
- Procedural Posture
- Civil Appeal / Ruling on Motion for Security for Costs
- Outcome
- Motion allowed. Appellants ordered to deposit security for costs.
- Judges
- JK Sergon
- Legal Topics
- Security for Costs, Appeals, Estate Distribution, Costs Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muli Muema Munyoli
Appellant
Josephine Munyiva Ndambuki (suing as the administrator and personal representative of the estate of the late Joseph Muthiani Mule)
Appellant
Macharia Nguru
Respondent
Waki Clearing & Forwarding Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Motion for Security for Costs
Legal Issues
- 1 Whether the appellants should be ordered to provide security for costs pending appeal.
- 2 Whether the estate of the deceased is capable of meeting the costs if the appeal is unsuccessful.
- 3 Whether the appellants acted in good faith in the conduct of the appeal.
Ratio Decidendi
The court found that the only asset of the estate of the deceased is the judgment sum, which has already been paid to the appellants. The appellants failed to provide credible evidence that the estate would be able to pay costs if the appeal is unsuccessful. The respondents' concern that the estate may be wound up before the conclusion of the appeal, leaving them without recourse for costs, was deemed reasonable. The court exercised its discretion to order security for costs to protect the respondents' potential right to recover costs, finding the motion well founded and granting the order as prayed.
Court Disposition
Motion allowed. Appellants ordered to deposit security for costs.
Orders
- Appellants to deposit KES 1,025,158 in an interest earning account in the joint names of advocates or firms of advocates as security for costs pending appeal within 30 days.
- In default, the appeal shall stand dismissed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 423 OF 2015
MULI MUEMA MUNYOLI
JOSEPHINE MUNYIVA NDAMBUKI
(SUING AS THE ADMINISTRATOR ANDPERSONAL REPRESENTATIVE OF THE
ESTATEOF THE LATEJOSEPH MUTHIANI MULE)......................... APPELLANTS
-V E R S U S –
MACHARIA NGURU........................................................................1ST RESPONDENT
WAKI CLEARING & FORWARDING LIMITED............................. 2ND RESPONDENT
RULING
1. Macharia Nguru and Waki Clearing & Forwarding Ltd, the 1st and 2nd respondents respectively took out the motion dated 16. 02. 2016 in which they sought for interalia that the appellants be ordered to provide security for costs within 15 days and in default this appeal be struck out. The motion is supported by the affidavit of Hannah Wanjiku Mbatia. When served with the motion, Mwema Munyoli and Josphine Munyiva Ndambuki the 1st and 2nd appellants respectively filed grounds of opposition to resist the motion. When the motion came up for interpartes hearing, learned counsels recorded a consent order to have the motion disposed of by written submissions.
2. I have considered the grounds stated on the face of the motion and the facts deponed in the supporting affidavit. I have further considered the grounds of opposition plus the rival written submissions. It is the submission of the respondent that the net estate of the late Joseph Muthiani Mule is principally made up of the judgement sum and costs paid to the appellants in the suit giving rise to this appeal. It is averred that the appellants have received the aforesaid sum and are in the process of distributing the estate. The respondents further argued that that unless the appellants made the deposit out of the judgment sum the respondents will not be able to recover costs awarded if the appeal is unsuccessful. The respondents pointed out that the appellants intentionally withheld service of the memorandum of appeal for over 35 days and only caused it to be served after they have been paid the judgment sum plus costs. According to the respondents the appellants have not acted in good faith in the circumstances hence an order for security is reasonable and appropriate.
3. The appellants on the other hand have strenuously opposed the motion on the basis that the respondents have not tendered evidence indicating that the estate of the deceased would be wound up and that the appellants would be unable to pay costs of the appeal if the appeal is unsuccessful. The appellants argued that the estate is capable of meeting the costs of the appeal. The appellants further attacked the submission that there is lack of good faith on their part arguing that the assertion is unfounded.
4. Having considered the material placed before me plus the rival arguments three issues appear to be undisputed. First, it is not in dispute that the judgment sum arising from Nairobi C.M.C.C no. 5865 of 2011 has been paid to the appellants’ advocate. Secondly, it is also not disputed that the judgment sum is the only asset of the estate of Joseph Muthiani Mule, deceased. Thirdly, that the judgment sum is the only asset of the estate which is available for distribution. The issue which has been left to this court is whether or not the order for provision for security for costs should be made. There is no doubt the court retains the unfettered discretion to make the order for the provision of security for costs. The main ground relied upon by the respondents in seeking for the order is that the estate may be wound up by the time the appeal is concluded and that there will be nothing to attach to pay costs to the respondents if the appeal is lost. The appellants have merely stated that the estate will be able to pay costs without tendering credible evidence to prove that the estate has the means. The order for security for costs is made to ensure that a successful litigant is not left without a remedy for costs that might be awarded to him.
5. In the end, I am satisfied that the motion is well founded. It is allowed as prayed. Consequently the appellants are directed to deposit in an interest earning account in the joint names of advocates and or firm of advocates a sum of ksh. 1,025,158/= as security for costs pending appeal within the next 30 days. In default the appeal shall stand dismissed.
6. Costs of the motion to abide the outcome of the appeal.
Dated, Signed and Delivered in open court this 29thday of September, 2016.
J. K. SERGON
JUDGE
In the presence of:
...................... for the Appellant
....................... for the Respondent