[2004] KEHC 1044 (KLR)
The court found that the appellant's insurers sent the cheque for security of costs before the expiry of the 30-day period ordered by the court. The delay in forwarding the cheque to the respondent's advocate was solely due to the appellant's counsel, who admitted her mistake. The court held that this was not a case...
Source-derived case information.
- Citation
- [2004] KEHC 1044 (KLR)
- Parties
- Appellant: Paul Kritnen; Respondent: Joseph Wachira Murakaru
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 132 of 2002
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Non Compliance With Security for Costs Order
- Outcome
- application dismissed; appeal not dismissed; costs awarded to respondent
- Legal Topics
- Security for Costs, Dismissal of Appeal, Counsel Mistake, Exercise of Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Kritnen
Appellant
Joseph Wachira Murakaru
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal for Non Compliance With Security for Costs Order
Legal Issues
- 1 Whether the appeal should be dismissed for failure to comply with the order to provide security for costs within the stipulated period.
- 2 Whether the delay in forwarding the security cheque, caused by counsel, should be visited upon the appellant.
Ratio Decidendi
The court found that the appellant's insurers sent the cheque for security of costs before the expiry of the 30-day period ordered by the court. The delay in forwarding the cheque to the respondent's advocate was solely due to the appellant's counsel, who admitted her mistake. The court held that this was not a case of the appellant ignoring or refusing to comply with the court order, but rather a mistake by counsel. Exercising its discretion, the court declined to dismiss the appeal, finding it unjust to penalize the appellant for counsel's error. However, the court ordered the appellant to pay the costs of the application and directed that the cheque be deposited in a joint account...
Court Disposition
application dismissed; appeal not dismissed; costs awarded to respondent
Orders
- The application to dismiss the appeal is dismissed.
- The appellant shall pay the costs of the application in any event.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL APPEAL NO. 132 OF 2002
PAUL KRITNEN ……………………………………………………. APPELLANT
- Versus -
JOSEPH WACHIRA MURAKARU ……………………………… RESPONDENT
R U L I N G
On the 10th June 2004, pursuant to an application made by the Respondent, this court ordered the Appellant to provide security for costs by depositing a sum of Sh. 200,000/= in a joint account in the names of the Advocates for the parties. Upon failure to do that, on the 21st July 2004, the Respondent applied under Order 41 Rule 9(3) of the Civil Procedure Rules, that this appeal be dismissed with costs.
Mr. Gathuku, counsel for the Respondent, submitted that the Appellant is not keen on prosecuting this appeal. That is why he is not getting in touch with his advocate. Referring to the replying affidavit Mr. Gathuku further submitted that notwithstanding the fact that the cheque for Sh. 200,000/= in the joint names of the Advocates for the parties has now been received, it reached him after this application had been filed and the appeal should therefore be dismissed.
In response Mrs. Tutui, counsel for the Appellant, submitted that she received the cheque on the 8th July 2004 before the period given in the order had expired. She, however, did not send it to Mr. Gathuku immediately as she was shopping, as instructed by her clients, for a bank that could give the best interest rate. She said that failure to send the cheque to Mr. Gathuku in time was due to her mistake and the Appellant should not be punished for counsel’s mistake.
I have considered the matter. The Appellants insurers sent the cheque for security of costs as ordered before the 30 days period expired. Had Mrs. Tutui forwarded it to Mr. Gathuku immediately this application could have been avoided. This is not a case of the Appellant ignoring or refusing to comply with the court order. This is a mistake by counsel and Mrs. Tutui owned up and said she is the one to blame and not her client. In the circumstances I exercise my discretion in the matter and decline to dismiss the appeal. I therefore dismiss this application but order the Appellant to pay the costs of the application in any event. Counsel for the parties shall immediately open a joint account and deposit into it the cheque for Sh. 200,000/=.
DATED and delivered this 16th day of November 2004.
D.K. Maraga
Ag. JUDGE