https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7433

Njane v Kiiru (Civil Appeal E508 of 2025) [2026] KEHC 7433 (KLR) (Civ) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7433 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E508 of 2025 WA Okwany, J May 28, 2026 Between Rachael Njeri Njane Appellant and Paul Patrick Waweru Kiiru Respondent Ruling 1.This ruling is in respect to the application dated 20th June 2025 wherein the Respondent/Applicant seeks orders that: -a.The Appellant deposits security for costs of the appeal;b.In default, the appeal stands dismissed; andc.Costs of the application be provided for. 2.The application is premised on Order 42 Rule 14 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and all enabling provisions of the law. 3.The application is supported by an affidavit wherein the Applicant contends that he has fully satisfied the decretal sum of Kshs. 696,828/= awarded by the lower court and that the appeal is therefore frivolous, vexatious and lacks merit. He further states that the Appellant’s financial standing and whereabouts are unknown and that there is a risk that costs may not be recoverable should the appeal fail. 4.The Appellant/Respondent opposed the application through his Replying Affidavit and written submissions dated 8th December 2025. 5.The application was canvassed by way of written submissions which I have considered. Applicant’s Submissions 6.The Applicant submitted that this Court has unfettered discretion under Order 42 Rule 14 of the Civil Procedure Rules to order for security for costs. Reliance was placed on Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 Others [2014] eKLR for the proposition that security for costs is intended to protect a successful litigant from irrecoverable costs, prevent frivolous appeals and prevent abuse of court process. 7.The Applicant further argued that the Appellant’s whereabouts and financial capability are unknown and further, that the the decree has already been fully satisfied. It was the Applicant’s case that the appeal is therefore frivolous and intended only to drain the Applicant’s resources. 8.The Applicant maintained that he risks suffering prejudice in recovering costs unless security is ordered. Appellant’s Submissions 9.The Appellant opposed the application and submitted that the appeal raises serious arguable points of law and fact as the lower court erred on liability and quantum. 10.It was submitted that the Applicant has not demonstrated that the appeal is frivolous. Reference was made to the decision in Westmont Holdings SDN BHD vs. Central Bank of Kenya & 2 Others [2023] KESC 11 (KLR) where the Supreme Court outlined guiding principles applicable in applications for security for costs. 11.The Appellant submitted that allegations regarding impecuniosity were speculative and unsupported by evidence as she is resident within the court’s jurisdiction. She added that poverty alone cannot justify security for costs against a natural person and that an order for security would stifle the appeal and impede access to justice contrary to Articles 48 and 50 of the Constitution. Analysis and Determination 12.Having considered the pleadings, affidavits and rival submissions, I find that the main issue for determination is whether the Applicant has made out a case for the granting of the orders sought in the application. 13.Order 42 Rule 14(1) of the Civil Procedure Rules provides that the Court may order the appellant to give security for the costs of the appeal. 14.The provision grants the Court discretionary power to order security for costs. It is however trite that such discretion must be exercised judiciously and upon consideration of the circumstances of each case. 15.In Westmont Holdings SDN BHD vs. Central Bank of Kenya & 2 Others (supra) the Supreme Court set out several principles governing the granting of an order for security including the merits of the proceedings, the genuineness of the appeal, the impecuniosity of the appellant, whether security would impede access to justice; and proportionality and fairness. 16.The Court is also guided by Articles 48 and 50 of the Constitution which guarantee access to justice and the right to fair hearing. 17.On the merits of the appeal, the Applicant argued that the appeal is frivolous because the decretal sum has already been settled. 18.This Court is however unable, at this interlocutory stage, to conclusively determine the merits of the appeal. The memorandum of appeal raises complaints relating to liability and quantum, which are matters ordinarily reserved for determination upon hearing the appeal. 19.It is trite that an appeal cannot be termed as frivolous merely because the decretal amount has been paid since satisfaction of a decree does not extinguish a litigant’s statutory right of appeal. I therefore find that the Applicant has not sufficiently demonstrated that the appeal is hopeless or an abuse of the process of court. 20.Turning to the issue of whether the Applicants risks non-recovery of costs, the Applicant contended that the Appellant’s whereabouts and financial status are unknown. 21.I however note that beyond bare allegations of risk, no material evidence was placed before the Court to demonstrate that the Appellant is outside the jurisdiction of the Court, lacks means, or is unlikely to satisfy a future order for costs. 22.The burden rested on the Applicant to establish reasonable grounds for apprehending inability to recover costs as mere speculation is insufficient. I further note that the Appellant has stated that she is resident within Nairobi County and within the jurisdiction of this Court. 23.I am therefore not persuaded that sufficient grounds have been established to warrant an order for security for costs. 24.On whether security for costs would stifle the appeal, courts have taken the position that they must exercise caution to ensure that applications for security for costs are not employed as instruments to hinder litigants from pursuing legitimate appeals. I therefore concur with the Appellant’s argument that indiscriminate orders for security may impede access to justice, particularly where there is no credible evidence of abuse of process or inability to pay costs. 25.Balancing the parties’ competing interests, I find that the prejudice likely to be suffered by the Appellant outweighs the speculative concerns raised by the Applicant. 26.In sum, I find that the Notice of Motion dated 20th June 2025 is not merited and I hereby dismiss it with orders that the costs of the application shall abide the outcome of the appeal.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 28TH DAY OF MAY 2026.HON W. A. OKWANYJUDGEIn the presence ofMs Muthoni for Kibiku for Appellant/RespondentNganga for Respondent/ApplicantUbah - Court Assistant