[2011] KEHC 2519 (KLR)
The court found that the applicant failed to provide satisfactory reasons to justify the exercise of discretion in its favour for an order of security for costs. The applicant's apprehension that the respondent would be unable to pay costs if the appeal failed was not supported by solid evidence but was based on...
Source-derived case information.
- Citation
- [2011] KEHC 2519 (KLR)
- Parties
- Appellant: Paul Oluoch Ominde; Respondent: Kenya Power & Lighting Company
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 100 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Application for Security for Costs
- Outcome
- application dismissed
- Judges
- J Karanja
- Legal Topics
- Security for Costs, Appeals, Exercise of Discretion, Costs Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Paul Oluoch Ominde
Appellant
Kenya Power & Lighting Company
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Security for Costs
Legal Issues
- 1 Whether the appellant should be ordered to provide security for costs under Order 42 Rule 14(i) of the Civil Procedure Rules.
- 2 Whether the applicant has provided sufficient grounds to warrant the exercise of the court's discretion in its favour.
Ratio Decidendi
The court found that the applicant failed to provide satisfactory reasons to justify the exercise of discretion in its favour for an order of security for costs. The applicant's apprehension that the respondent would be unable to pay costs if the appeal failed was not supported by solid evidence but was based on conjecture, particularly regarding the respondent's employment status. The court held that mere speculation about a party's ability to pay costs is insufficient to warrant an order for security for costs under Order 42 Rule 14(i) of the Civil Procedure Rules. Consequently, the application was dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application for security for costs is dismissed.
- Costs be in the cause.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
CIVIL APPEAL NO. 100 OF 2010
PAUL OLUOCH OMINDE ……………………….................….. APPELLANT
VERSUS
KENYA POWER & LIGHTING COMPANY …......................… RESPONDENT
R U L I N G
Order 42 Rule 14(i) of the Civil Procedure Rules provides that;-
“At any time 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.”
This application is premised on the foregoing provision. The applicant seeks an order that security in the sum of Kshs.60,000/- be furnished by the respondent/appellant and in default the appeal be dismissed with costs. The applicant is the respondent in this appeal filed on the 21st May 2010 by the respondent/appellant.
The main ground for the application is that there is real likelihood that the respondent will be unable to meet the applicant’s costs should the applicant succeed in the appeal.
It is the applicant’s contention that the respondent has no known source of income. Therefore, in the interest of justice the orders sought ought to be granted.The application is opposed and although the respondent has not filed a replying affidavit, he filed grounds of opposition on the 30th May 2011.
Having considered the application in the light of the submissions made by the learned counsels for the applicant and the respondent, this court is of the view that the applicant has not provided satisfactory reasons for discretion to be exercised in its favour. The apprehension by the applicant that since the respondent left his employment as a casual employee with the applicant, he may be unable to raise the costs incurred by the applicant in the event that the appeal is successfully defended, is not based on any solid grounds but conjecture.
In the end result, the application is devoid of merit. It is and must be dismissed.Costs be in the cause.
J.R. KARANJA
JUDGE
(Read and signed this 9th day of June 2011)