[2022] KEHC 15324 (KLR)

Odhiambo v Attick Enterprises Saw Mill (Civil Appeal 66 of 2018) [2022] KEHC 15324 (KLR) (3 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15324 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 66 of 2018

HK Chemitei, J

November 3, 2022

Between

Kennedy Odhiambo

Appellant

and

Attick Enterprises Saw Mill

Respondent

Ruling

1. In its notice of motion dated May 20, 2022 the respondent/applicant pray for orders that;a.That the applicant does deposit in court the sum of Kshs 100,000/= or such other sum as security for costs of the respondent within 21 days of granting such orders or such other time as this honourable court may direct.b.That in default of such deposit appellant appeal be dismissed.c.That the costs of this applicant be borne by the respondent in any event.

2. The application is premised on the grounds on the face of it and the sworn affidavit of Betty Isoe a legal officer at ICEA Lion General Assurance Company Limited sworn on the same date. She deposed that judgment in the subordinate court was delivered well over 4 years ago and M/s ICEA Lion General Assurance Ltd settled the claim inclusive of costs. That they only came to be aware that the appellant/respondent had lodged an appeal sometime in April, 2022 when his lawyers served them with the record of appeal and they sought their instructions to defend the same.

3. She deposed further that the said service was in utter breach of the spirit and letter of Order 42 rule 11 and rule 12 of the Civil Procedure Rules that requires timeous service of the memorandum of appeal. That the record of appeal was served 4 years after the judgment was settle and they had already closed their file and marked the matter as settled. She deposed also that the respondent/applicant and its insurers were being put to an unnecessary expense of defending an appeal that had little chance of success. It was only fair that the appellant/respondent underwrites the respondent /applicant likely costs for appeal.

4. The appellant vide his replying affidavit dated June 3, 2022 opposed the application. He deposed that the application was bad in law, made in bad faith, inept, lacks merit, and otherwise amounts to an abuse of the court process. That he instructed his advocates on record to file a claim against the respondent/applicant which they did seeking for compensation for the injuries sustained while on duty at the respondent/applicant’s saw mill on November 6, 2015.

5. He deposed further that he was aggrieved with the judgment delivered on May 25, 2018 in NakuruCMCC 66 of 2018, and he instructed his advocates on record to file and pursue an appeal against the said judgment on his behalf. Further, that the memorandum of appeal was filed in less than a month after judgment was delivered while the record of appeal was filed later because of the difficulty his advocates on record experienced with getting typed proceedings of the lower court file.

6. He went on to depose that the issues raised in the memorandum of appeal and the question of the chances of success that the appeal has cannot be prosecuted in an application but instead they will be canvassed in the appeal when it comes up for hearing. Additionally, that the counsel for the respondent/applicant were well aware on the appeal herein having been served in good time as evident in the record of appeal bearing a stamp from their advocates evidencing proof of service.

7. The appellant/respondent deposed also that they should have filed the application in good time and they have not indicated the substantial loss that they are likelihood to suffer. That he will be grossly prejudiced if the respondent/applicant’s application was allowed as it was merely aimed at denying him his right of appeal. Also, that he was a man of straw and he could not afford to furnish security as proposed by the respondent/applicant herein.

8. When the matter came up for hearing the court directed that the same be determined by way of written submissions which the parties have complied

Applicant’s Submission 9. The applicant in its submission raised one issue for determination namely; whether the application has provided satisfactory reasons for discretion to be exercised in its favour. On this issue the applicant placed reliance on Order 42 rule 14 of theCivil Procedure Rules, 2010 and the case of Ocean View Beach Hotel Limited v Salim Sultan Moloo & 5 others Civil Case No 533 of 2011[2012] eKLR.

10. The applicant went on to submit that the appellant/respondent was incapable of paying the costs of the appeal if it was unsuccessful. That it was evident from the appellant’s testimony that he was unable to pay costs of the appeal if he was unsuccessful. Further, that the appellant/respondent in his affidavit sworn on June 3, 2022 admitted that he was a man of straw and had no capacity to furnish security. It urged the court to grant its prayers in the application. The court’s attention was drawn to the cases of Gitirau Peter Munya v Dickson Mwenda Githinji & 2 others [2014] eKLR and Mohammed Ali Osman t/a Hanan Petroleum v Juanco Group Limited [2021] eKLR.

Respondent/Appellant’s Submissions 11. The respondent/appellant in his submissions placed reliance on the case of Europa Holdings Limited v Circle Industries (UK) BCLC 320 CA where the court held that it must be proved that the plaintiff would not be able to pay the costs at the end of the case and that mere inability was not enough. The respondent/appellant further placed reliance on the case of Kibiwott & 4 others v The Registration Trustees of Monastery of Victory Nakuru, HCCC No of 146 of 2004, where the court observed that for a party to succeed in an application for security of costs he had to prove that the opposing party will not be able to pay the costs to be awarded in the event of the suit filed by such a party was dismissed.

12. In conclusion the respondent/appellant placed reliance on the case of Scotch Whisky Association & 2 others v Africa Spirits Limited[2020] eKLRwhere the honourable court dismissed a similar application where the defendant did not furnish the court with any evidence to support its claim that the plaintiffs were financially unstable so as to justify its claim and that it would experience difficulties in recovering costs from the plaintiffs should it be successful. Further, they cited article 48 of the Constitution,2010 which provided that the state shall ensure access to justice for all persons and, if any fee is required it shall be reasonable and shall not impede access to justice. He urged the court to dismiss the present application with costs in his favour.

Analysis and Determination 13. I have considered the pleadings and submissions by parties and in my view the issue arising for determination is whether the application dated May 20, 2022 has merit.

14. In addressing this issue this court takes judicial notice that while granting an order for payment of security for costs, the court ought to use its discretionary powers judiciously by taking reference to the circumstances of each case. Further, in consideration of an application for security of costs the court should balance the competing rights of the parties, that is the right to access justice and the right to security for costs. In the case ofPatrick Ngeta kimanzi v Marcus Mutua Muluvi & 2 others- High Court Election Petition No8 of 2013 it was held that: -“Security of costs ensures that the respondent is not left without recompense for any costs or charges payable to him. The duty of the court is therefore to create a level ground for all the parties involved, in this case, the proportionality of the right of the petitioner to access to justice vis-a-vis the respondent's right to have security for any costs that may be owed to him and not to have vexatious proceedings brought against him.”

15. Also, in the case of Harit Sheth Advocate v Shamas Charania – Civil Appeal No 68 of 2008, the court held as follows: -“The principal aims of the overriding objective include the need to act justly in every situation; the need to have regard to the principle of proportionality and the need to create a level playing ground for all the parties coming before the courts by ensuring that the principle of equality of arms is maintained and that as far as it is practicable to place the parties on equal footing.”

16. In the instant application, it is not in dispute that the respondent/appellant is a man of limited means more so a man of straw and in the event that he is unsuccessful, he may not be in a position to pay the costs incurred by the applicant. This position he clearly admitted in his affidavit. Therefore, in the interest of justice the appellant needs to be protected or indemnified as well.

17. It is also noted that the decretal amount which the court was unable to know as it was not available from the record was already paid out to the appellant, a fact not in dispute. What then is the guarantee to the respondent.? At the moment none at all.

18. It is not enough to state that he was a man of straw yet he had been compensated already. If anything he should be able to utilize part of the money for indemnity.

19. This court has noted as well that despite filing this appeal on June 6, 2018 no meaningful steps have been taken by the appellant to prosecute the same. The record of appeal does not contain any proceedings from the lower court. No evidence has been shown that the lower court file was missing or unavailable. In my view this appeal appears to be what is called in local parlance “a holding appeal”.

20. Consequently, the application is allowed as hereunder;a)The appellant shall deposit in this court the sum of kshs 60,000 within 30 days from the date herein as security pending appeal.b)The appellant shall within 45 days from the date herein process the appeal for trial and in default the same shall stand dismissed.c)Costs of this application to the applicant.

DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 3RD DAY OF NOVEMBER 2022. H K CHEMITEI.JUDGE