[2015] KECA 381 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: OKWENGU, G.B.M. KARIUKI & KANTAI, JJ.A.)

CIVIL APPEAL NO. 233 OF 2013

BETWEEN

PETER KAMAU IKIGU ………………………..........……… APPLICANT

VERSUS

BARCLAYS BANK OF KENYA LIMITED ……....….. 1STRESPONDENT

PETERSON OGINO ONGARO ……………………. 2NDRESPONDENT

(An appeal from the Judgment of the High Court of Kenya at Nairobi (Odunga, J.) dated on 27th February, 2013

in

HCCC No. 719 of 2003)

********************

RULING OF THE COURT

The Notice of Motion before us is said to be brought under Order 26 of theCivil Procedure Rules, Section 3(2)of theAppellate Jurisdiction Actand all other enabling provisions of law. The orders sought are that:

“1. The 2ndrespondent be directed to deposit an amount of Kshs.25,000,000 as security for costs.

2. Any other order that this Honourable Court may deem fit and just to grant.”

It is stated on the face of the Motion that the 2nd respondent is a permanent resident of the United Kingdom; that he does not own any attachable property in Kenya; that his identity, character and integrity is questionable; that it may not be possible to trace the 2nd respondent at the conclusion of “trial” and finally that it is only fair and just that the said respondent be ordered to provide security.

The applicant, Peter Kamau Ikigu, swore an affidavit in support of the Motion on 5th February, 2015. The matters raised on the face of the Motion are recapitulated in the affidavit where it is also stated that the applicant as plaintiff sued the two respondents Barclays Bank of Kenya Limited and Peterson Ogino Ongaro as defendants in a civil suit at the High Court of Kenya and that Judgment had been duly delivered where the suit was dismissed. Subsequent to that dismissal the applicant filed Civil Appeal No. 233 of 2013 which is said to be pending in this Court and may take some time before conclusion. That the respondents have since filed bills of costs at the High Court in respect of the dismissed suit and for all these reasons the 2nd respondent be ordered to provide security for costs in the sum already stated.

A perusal of the Judgment in HCCC No. 719 of 2003 shows that the applicant sued the two respondents for various orders after his house was sold by the 1st respondent to the 2nd respondent after the 1st respondent exercised its statutory rights on a charged property. That suit was dismissed with costs on 27th February, 2013. The applicant lodged a Notice of Appeal against that Judgment on 13th March, 2013.

Being satisfied that the 2nd respondent was duly served with a hearing notice but had not attended court we allowed Mr. Khalwale, the learned counsel for the applicant, to prosecute the Motion. Mr. Chacha Odera, the learned counsel for the 1st respondent begged to be excused from the proceedings as he was of the view, and Mr. Khalwale agreed, that the orders sought did not affect the 1st respondent. He was thus excused.

In his brief address Mr. Khalwale referred us to the grounds in support of the Motion and the affidavit in support and submitted that Rule 107 of this Court’sRulesdonated a power to order security for costs as prayed by his client.

Rule 107(1)of thisCourt’s Rulesstates:

“107 (1) Subject to rule 115, there shall be lodged in Court on the institution of a civil appeal as security for the costs of the appeal the sum of two thousand shillings.”

The security for costs envisaged by the said rule is payable by an appellant on institution of an appeal and a respondent in such an appeal is not required to deposit any security for any costs.

The applicant depones at paragraph 8 of the affidavit in support of the Motion:

“8. THAT while the appeal is pending determination, the Respondents have filed their respective bills of costs in respect of the case before the Superior Court amounting to Kshs.14. 3 Million or thereabouts.”

The applicant in the event lost his suit at the High Court which was dismissed with costs. The respondents are said to have filed bills of costs which it is obviously their right to do having had the appellants’ suit dismissed and having been awarded costs.

We have considered the Motion before us and the submissions made. We were not able to find any law or basis upon which the applicant here would be entitled to an order for what he calls security for costs for the sum stated or any other sum at all. The matters raised as grounds of the Motion and the issues in the affidavit cannot be established by such affidavit evidence as they would require scrutiny.

The application has no merit and we accordingly dismiss it. As the 1st respondent did not have any interest in the application and as the 2nd respondent who was duly served with a hearing notice did not attend court at the hearing we make no order as to costs.

Dated and Delivered at Nairobi this 25thday of September, 2015.

H. OKWENGU

………………………

JUDGE OF APPEAL

G.B.M. KARIUKI

…………………..…

JUDGE OF APPEAL

S. ole KANTAI

…………….……..…

JUDGE OF APPEAL

I certify that this is a

true copy of the original.

DEPUTY REGISTRAR