[2007] KEHC 597 (KLR)
The court held that the basic rule is well established that poverty is no bar to a litigant seeking justice, and a natural person should not be ordered to furnish security for costs solely due to inability to pay. The court found that, although the plaintiff's claim may be exaggerated and the defendant's...
Source-derived case information.
- Citation
- [2007] KEHC 597 (KLR)
- Parties
- Plaintiff: Thomas Mutunga Kithunzi; Defendant: Standard Assurance (K) Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1414 of 2004
- Procedural Posture
- Civil Case / Ruling on Application for Security for Costs
- Outcome
- application dismissed with costs to the plaintiff
- Judges
- JL Osiemo
- Legal Topics
- Security for Costs, Termination of Employment, Service Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Mutunga Kithunzi
Plaintiff
Standard Assurance (K) Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application for Security for Costs
Legal Issues
- 1 Whether the plaintiff should be ordered to furnish security for the defendant's costs due to alleged inability to pay if the suit fails.
- 2 Whether the court should depart from the general rule that poverty is no bar to a litigant seeking justice.
Ratio Decidendi
The court held that the basic rule is well established that poverty is no bar to a litigant seeking justice, and a natural person should not be ordered to furnish security for costs solely due to inability to pay. The court found that, although the plaintiff's claim may be exaggerated and the defendant's apprehension about recovering costs understandable, the rule against requiring security for costs from natural persons should not be used as an instrument of oppression to shut out poor litigants. Therefore, the defendant's application for security for costs was dismissed.
Court Disposition
application dismissed with costs to the plaintiff
Orders
- The defendant's application for security for costs is dismissed.
- The defendant shall pay the costs of this application to the plaintiff.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1414 of 2004
THOMAS MUTUNGA KITHUNZI…………………..………………….…PLAINTIFF
VERSUS
STANDARD ASSURANCE (K) LTD………………………..……….DEFENDANT
RULING
By this Chamber Summons dated 7th July 2005 and expressed to be brought under Order XXV Rule 1 5(1) and 6 of the Civil Procedure Rules, the Defendant seeks orders that the Plaintiff do furnish security for the Defendant’s costs in this suit assessed at Shs.800,000/= and to be furnished within 30 days of the order.
The application is premised on the grounds:-
1. That the Plaintiff has instituted this suit claiming loss and damages amounting to Shs.31,211,518/= for alleged wrongful termination of employment by the Defendant.
2. That the Plaintiff’s suit is misconceived, ill advised, frivolous and vexatious as the termination of service was as per the terms and conditions of the agreement of employment.
3. That the Plaintiff’s claim is bad in law, frivolous and lacks in merit.
4. That the Plaintiff was a former employee of the Defendant and his salary scale cannot cover the Defendant’s costs for defending the suit.
5. That the Defendant has no knowledge of any attachable assets of the Plaintiff that can pay the costs for defending this suit of about Shs.800,000/=.
6. The Defendant is apprehensive that in the event that the Plaintiff’s suit fails, he will not have the means to satisfy the defendant’s costs.
7. That it is in the interest of justice and fair in the circumstances for the Plaintiff to furnish security for costs.
The application is also supported by an affidavit sworn by Isaac Kitur the Legal Officer of the Defendant who avers that the termination of the Plaintiff’s contract was in accordance with the Terms and Conditions of Appointment and he was offered two months salary in lieu of notice as stipulated in the terms of the service contract which he declined to take; that the Plaintiff’s suit has minimal chances of success and is therefore apprehensive that the Plaintiff might not be able to satisfy the Defendant’s costs of the suit taking into account that his salary was about Shs.50,000/= per month prior to termination of his services and he has no attachable assets.
The application is opposed by the Plaintiff who has filed a Replying Affidavit sworn on 25th October 2005 in which he avers that he has means to satisfy the Defendant’s costs in the event he loses the suit as he is engaged in other profitable businesses since his services were terminated.
The action is plainly excessive I agree and the Defendant’s application is based on the inability by the Plaintiff to pay costs in the event he loses the claim.
This claim was brought by Thomas Mutunga Kithunzi, a natural person. The basic rule that a natural person who sues will not be ordered to give security for costs however poor he is, is ancient and well established. As BOWEN L.J said in COWELL VS. TAYLOR [1885] 35 CH D. 34 at 38, both at law and equity, “the general rule is that poverty is no bar to a litigant”.
And in N. ABDULLA VS. PATEL & ANOTHER [1962] EA 447 Sir Trevor Gould Ag. VP 1962 EA 447 said at page. 453:
“It is right that a litigant however poor, should be permitted to bring his proceedings without hindrance and have his case decided.”
I agree that this claim arises out of a simple service contract which contained termination clause and that the claim is a bit exaggerated. But looking at the matter as a whole I have reached the conclusion that the court must not allow the rule to be used as an instrument of oppression by shutting out poor litigants due to inability to meet the Defendant’s costs.
The defendant’s application is therefore dismissed with costs.
Dated and delivered at Nairobi this 2nd day of May, 2007.
J.L.A. OSIEMO
JUDGE