[2017] KEHC 4560 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

IN BUSIA

LAND & ENVIRONMENTAL DIVISION

ELC. NO. 124 OF 2016

STEPHEN OLOO AFWADE.................................................APPLICANT

VERSUS

JOHN FRANICS MUYODI.......................................1ST RESPONDENT

PETER LUNANI ONGOMA....................................2ND RESPONDENT

R U L I N G

1. The application under consideration is a Notice of Motion dated 15/12/2016 and filed on the same date. It is stated to be brought under Section 7 of Civil Procedure Act and Order 28 Rule 1 and 6, Order 51 Rule 1 of Civil Procedure Rules. The Applicant – JOHN FRANCIS MUYODI – is the first Respondent in the originating summons filed here by the Respondent – STEPHEN OLOO AFWADE – on 20/9/2016. The second Respondent in the originating summons is PETER LUNANI ONGOMA, who is John’s brother. The dispute herein relates to Land parcel No. MARACHI/ELUKHARI/415.

2. In this application, the following prayers are sought:

Prayer 1: This suit be dismissed with costs, or otherwise.

Prayer 2: The Plaintiff be committed to deposit Kshs.200,000 as security for 1st Defendant’s costs before the suit could proceed for hearing.

Prayer 3: The Plaintiff be ordered to stop brining more suits over the same subject matter between the same parties in contempt of Court.

Prayer 4: Costs of application be provided for.

The term Plaintiff in the prayers refer to Respondent in this application while the term Defendant refers to the Applicant.

3. The grounds advanced to support the application stipulate that an order given in Kakamega HCC No.38 of 1992 makes the suit resjudicata; that the Plaintiff has filed several other cases over the same subject matter; and all were dismissed. The Plaintiff was ordered to pay costs but has not paid and the Defendant cannot execute because the Plaintiff’s resident is unknown to him. The Applicant, or Defendant if you like, also intimated that the Plaintiff, or Respondent, has no capacity to pay costs. To the Applicant, the Respondent is a contempt of the order issued at Kakamega. The affidavit supporting the application essentially amplifies the grounds advanced.

4. The Respondent responded vide a replying affidavit filed on 16/1/2017. According to him, the past cases referred to in the application were not decided on merits as the Applicant then had not obtained letters of administration at the time of their determination. The Respondent himself had allegedly not obtained letters of administration also. According to the Respondent, the cases were dismissed on technicalities. He therefore wants the present case to be determined on merits.

5. The Respondent further stated that the Applicant is now the administrator of his late father’s estate and the Respondent and his extended family are entitled to 30 acres from the disputed land. The application herein is said to have been filed in bad faith and the Respondent therefore asked for its dismissal.

6. The application was canvassed by way of written submissions. The Applicant’s submissions were filed on 20/2/2017. The submissions were filed together with a further affidavit which interalia, makes the point that the suit at kakamega was heard and decided on merits while the one here at Busia had the Respondent asking for inclusion in the distribution of the estate of the Applicant’s late father, which was rejected. The submissions themselves reiterate what the application and the further affidavit contain.

7. The Respondents submissions were filed on 6/4/2017. According to the Respondent, the application herein is premature, having been brought before directions were taken. It was further submitted that the allegations in the application can be dealt with during hearing. The Respondent alleged that he has never filed a claim of customary trust before the Court. His position therefore is that his claim should be heard.

8. On the issue of costs as security, it was averred that the Respondent does not owe the Applicant any previous costs. In the same breath, it was averred that if any costs are owed, the Applicant can execute for them. The Respondent sees the application as an attempt by the Applicant to ensure that his claim is not heard. He asked that the application be dismissed.

9. I have considered the application, the response made, the Applicant’s further affidavit, rival submissions, and the suit in general. It is clear that the parties are not new to each other. They have ligated in other cases in the past. And it is clear that in all those cases, the Respondent lost. The application is not premature. It can be filed any time.

10. The Respondent’s replying affidavit focuses entirely on the issue of RES-JUDICATA. It does not address the issue of costs. That issue is only raised in the submissions. The court has not been enabled by the Applicant to deal with the issue of RES-JUDICATA. The judgement of the case at Kakamega should have been availed. Instead, it is the eviction order that was availed. The eviction order does not tell much about that case. It does not, for instance, tell whether the case at Kakamega was decided on merits or not. It is merely an order directing that the Respondent be evicted.

11. The judgement at Kakamega was crucial. It would have enabled this Court to see the reasoning of the Court and also appreciate the issues that were considered. The decisions in the other cases between the parties seems to have been decided on considerations other than merits. The one at the High Court here at Busia, for instance, found that the respondent had filed his claim of trust at the wrong forum. The case at the Land tribunal was not considered because the decision of the case at Kakamega was brought to the notice of the tribunal. It is clear to me therefore that RES-JUDICATA is not well demonstrated in this case and the dismissal of the suit asked on this basis is hereby rejected.

12. The Applicant’s alternative prayer was that of security for costs. The Applicant was able to show that he had won previous litigation against the Respondent and had been awarded costs. The Respondent however was said not to have paid the costs. The Applicant said it was difficult to enforce such payments as the whereabouts of the respondents abode are unknown to him. I expected the Respondent to give a good explanation to all this. He did not. I see him saying that the Applicant can execute for any past costs. I do not see him saying that his abode is known or where it is. I do not see him saying he has means to pay.

13. Security for costs is ordered paid where a Defendant has reasonable apprehension that his legal costs will not be paid by the Plaintiff if the Defendant is successful. If the Defendant is successful, costs are paid from what is deposited. The purpose of the order is simple. It is meant to protect the Defendant from situations in which he is needlessly dragged to court, and stands to lose even the costs of litigation. It protects the Defendant from being hurt by useless litigation.

14. In ordering payment for security for costs, the Court considers that the Plaintiff may likely not satisfy the order for cost. The Court must also consider other attendant circumstances and conclude it is just to make the order. Another crucial consideration is the residence of the Plaintiff. And about residence, the court needs to consider whether the Plaintiff is dodgy or less than forthright about his place of residence. Overall, it is a matter of discretion of the Court, the only rider being that, like all other discretion, such discretion should be exercised judiciously.

15. In the application at hand, I well understand the Applicant’s apprehension concerning the cost if this matter goes the way of the others before it, meaning dismissal as the end result. With past costs not having been shown to have been paid; with the Respondent not coming clear on the issue of residence; and with the issue of security not addressed at all in the Respondents response to the application; I think the Applicant has made a case for payment of money as security for costs.

16. The Applicant would like Kshs.200,000/= to be paid. In my view kshs.100,000 would be reasonable. The Respondent is hereby ordered to deposit Kshs.100,000/= in Court as security for costs. That has to be done within 90 (ninety) days after delivery of this ruling failing which the Applicant will be at liberty to apply for dismissal of the case.

17. The other prayer for the Applicant is that the Plaintiff, or Respondent, be ordered to stop bringing more suits relating to the same subject matter. This prayer is out-rightly rejected. It is not possible to accurately guess or predict what issues may crop up in future. And an order from Court that addresses an uncertain future is not a good order. Besides, the Courts have an open-door policy concerning the filing of suits before them. The order sought might act as a fetter to the Respondent’s right to litigate in any Court in Kenya.

18. The only order granted therefore is that of payment of deposit for security for cost and that has to be done as stated at paragraph 16 herein. The application is successful to that extent. Cost of the application will be in the cause.

Dated this 13th day of July, 2017

A. K. KANIARU

JUDGE

In the Presence of:

Applicant: ……………………………………

Respondent: ………………………………