[2011] KEHC 433 (KLR)
The court found that while it is within its discretion to order security for costs to protect respondents from potential loss, such an order must not be so onerous as to prevent the appellant from accessing the court. The court considered the appellant's objection to the quantum sought and determined that the amount...
Source-derived case information.
- Citation
- [2011] KEHC 433 (KLR)
- Parties
- Appellant: Vitalis Okere (suing as next friend of Doreen Pushpa Okere); Respondent: Akamba Bus Services Ltd; Respondent: Sofitra Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 140 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Application for Security of Costs
- Outcome
- Application for security of costs allowed in part; security ordered at reduced amount.
- Legal Topics
- Security for Costs, Appeals, Dismissal for Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vitalis Okere (suing as next friend of Doreen Pushpa Okere)
Appellant
Akamba Bus Services Ltd
Respondent
Sofitra Ltd
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Security of Costs
Legal Issues
- 1 Whether the appellant should be ordered to provide security for costs in the appeal.
- 2 Whether the amount of security for costs sought is excessive and should be reduced.
Ratio Decidendi
The court found that while it is within its discretion to order security for costs to protect respondents from potential loss, such an order must not be so onerous as to prevent the appellant from accessing the court. The court considered the appellant's objection to the quantum sought and determined that the amount of Ksh. 50,000 was excessive in the circumstances. Accordingly, the court allowed the application for security for costs but reduced the amount to Ksh. 10,000, balancing the need to protect the respondents with the appellant's right to be heard. Costs of the application were awarded to the respondents.
Court Disposition
Application for security of costs allowed in part; security ordered at reduced amount.
Orders
- Appellant to provide security for costs in the sum of Ksh. 10,000.
- Costs of the application awarded to the respondents.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CIVIL APPEAL NO. 140 OF 2011
VITALIS OKERE (SUING AS NEXT FRIENDOF DOREEN PUSHPA OKERE).......APPELLANT/RESPONDENT
VERSUS
AKAMBA BUS SERVICES LTD..................................................................................RESPONDENT/APPLICANT
SOFITRA LTD.............................................................................................................RESPONDENT/RESPONDENT
(Being an appeal from the Ruling and Decree of the Chief Magistrate’s Court at Milimani Commercial Courts Nairobi CMCC No. 9983 of 2002 delivered on the 25th February 2011 by the Hon. Mr A.K. Ndungu- Senior Principal Magistrate)
RULING
Security of Costs
Application Notice of Motion, 9th June 2011
I.BACKGROUND
1. The appellant/original plaintiff and his daughter (next of friend) had been involved in a road traffic and sustained serious injuries. They sued the first and second respondents for compensation.
2. The suit in the subordinate court was dismissed on 17th June 2009 for want of prosecution. An application dated 24th August 2010 to that subordinate court seeking orders to reinstate the suit for hearing was duly dismissed.
3. The appellant appealed to this High Court on 23rd March 2011. The respondent No. 1 filed application notice of motion 9th June 2011 seeking security of costs.
IIAPPLICATION NOTICE OF MOTION 9TH JUNE 2011
4. The applicant/respondent number one brought this application under Order 42 r 14 Civil Procedure Rules seeking this court’s orders that the appellant produce security of costs of the appeal at an amount of
Ksh. 50,000/=.
5. The second respondent supported the application.
6. In reply, the appellant stated that the amount of Ksh. 50,000/= was excessive, if this may be reduced.
IIIFINDINGS
7. The application herein is allowed on condition that there be security of costs issued. This sum be and is hereby reduced to the sum of
Ksh. 10,000/=
8. An appellant has a right to be heard but as these courts have often said, the amount of security should not be so large as to shut out a person from accessing the courts.
9. There will be costs to the applicants, one and two respondents.
DATED THIS 30TH DAY OF SEPTEMBER 2011 AT NAIROBI
M.A. ANG’AWA
JUDGE
Advocates:
i)Z. J. Mohammed instructed by M/s Archer & Wilcox & Co Advocates for the Appellant
ii)A.M. Simiyui instructed by M/s Musyoka Wambua & Co Advocates for the 2nd Respondent
iii)F S Macharia instructed by the firm of Mungai Kalande & Co Advocates for the 1st respondent