Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No 294 of 2013

Abdinasir Yasin Ahmed & 2 others v Ahmed Ibrahim Abass & 2 others [2014] KECA 104 (KLR)

Court of Appeal of Kenya
28 February 2014
David Kenani MaragaD. K. MaragaJMJ. M. MweraPhilomena Mbete MwiluP. M. Mwilu
2,695 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal ordered election petition appellants to deposit Kshs 2 million security for costs, ruling that poverty alone won't shield suspected proxy litigants.

What this practically means

#

Executive summary

#
This is an interlocutory ruling of the Court of Appeal at Nairobi (Maraga, Mwera and Mwilu JJ.A) in an appeal against the dismissal by Mabeya J of Garissa High Court Election Petition No. 9 of 2013, in which the appellants had sought nullification of the 1st respondent's election as Member of Parliament for Ijara Constituency. Before the hearing of the appeal, the 1st respondent moved under Rules 42, 47 and 107(3) of the Court of Appeal Rules for further security for the costs of the appeal, including past costs of the petition, a stay of the appeal pending security, and striking out in default. The court held that the security-for-costs principle requiring proof of inability to pay applies only to limited companies; for natural persons, a litigant however poor should be permitted to bring proceedings without hindrance. However, poverty is only one criterion: the bona fides of litigants, the nature and merits of the case, vexatious litigation, proxy candidature and the special nature of election disputes as proceedings in rem with statutory timelines all weigh in the balance. The court found the appellants were major campaign agents, and possibly proxies, of Sophia Abdi Noor, the 1st respondent's closest challenger, and that under Section 112 of the Evidence Act the burden shifted to the appellants, who adduced no evidence of means, to show they could pay costs. The application was allowed: the appellants were directed to deposit Kshs. 2 million or a bank guarantee within fifteen days, the hearing of the appeal was stayed until security was provided, no default order was made at that stage, and the 1st respondent was awarded the costs of the application.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 1st respondent's application for further security for costs, including past costs of the petition, should be granted
  2. 2.Whether the burden lies on an applicant for security for costs to prove the impecuniosity of the appellants
  3. 3.Whether the hearing of the appeal should be stayed pending provision of security
  4. 4.What quantum of security is reasonable

Key legal issues

#
01

Principle governing applications for security for costs against natural persons versus companies

Holding

The English Companies Act principle (mirrored in section 401 of the Kenyan Companies Act) applies only to limited companies; for natural persons the principle in Noormohamed Abdulla v Patel applies - a poor litigant should not be hindered from bringing proceedings.

Reasoning

The court distinguished the company-oriented authorities (Marco Tool, Messina) relied on by the appellants, holding they apply to artificial persons. As the appellants are natural persons, the Noormohamed Abdulla principle, earlier stated in Siri Ram Kaura v Morgan, governs. However, poverty is only one criterion; bona fides, merits and vexatious litigation also matter.

p. 3
02

Special considerations applicable to election disputes in security-for-costs applications

Holding

Election disputes are disputes in rem of concern beyond the parties; courts must balance the petitioners' right to be heard against respondents not being made to suffer astronomical, unrecoverable costs, and allegations of proxy litigants must be seriously considered where there is proof.

Reasoning

The court emphasized the high-stakes, high-pressure nature of elections, the statutory timelines under Articles 105 and 140 of the Constitution and Sections 85 and 85A of the Elections Act, and the expense of election litigation. These factors justify security for costs, including against proxies of losing candidates.

p. 3
03

Burden of proof in applications for security for costs

Holding

The applicant bears the burden of establishing the case and proving allegations; however, where the applicant knows the appellants come from the same area and has no means of knowing their assets, the burden shifts to the appellants under Section 112 of the Evidence Act to show they can pay costs.

Reasoning

The court rejected counsel's submission that mere assertion of impecuniosity suffices. But because the respondents are the ones who know what they own, and the applicant cannot know of bank deposits or shares, the evidential burden shifted to the appellants, who placed no evidence of means before the court beyond the deposits already made.

p. 4
04

Proxy litigation in election disputes

Holding

On the record, the appellants were the major campaign agents of Sophia Abdi Noor and may very well be her proxies, supporting the application for security.

Reasoning

The court accepted the allegation that the appellants sat down with others, agreed who should file the petition and contributed the deposit, in a stratagem to enable the losing candidate to avoid costs liability. A perusal of the record supported this, and such contentions should not be dismissed off hand where there is proof.

p. 4

Legal principles established

#
  • The security-for-costs principle requiring proof of inability to pay applies to limited liability companies, not individual natural persons, who should not be hindered by poverty from bringing proceedings.
  • In an application for security for costs, the burden is on the applicant to prove the basis and allegations supporting the application; mere assertion of impecuniosity is insufficient.
  • Where a respondent alleges that the appellants, who come from the same area, have no identifiable assets, the burden shifts to the appellants to show they have means of settling costs, pursuant to Section 112 of the Evidence Act.
  • Poverty is only one criterion in applications for security for costs; the types and bona fides of the litigants, the nature and merits of the cases, vexatious litigants and clearly frivolous claims are also relevant, each case being decided on its own merits.
  • Once a court grants security for costs, an order staying further proceedings is imperative, otherwise the order of security will be defeated if the proceedings continue.
  • The quantum of costs to be secured should be reasonable and modest, securing the respondent's likely costs without being prohibitive so as to block the appeal.

Court orders

#
  1. 1.Appellants to deposit in court, within fifteen days, a further sum of Kshs. 2 million or a bank guarantee for that sum as the 1st respondent's costs in the appeal
  2. 2.Hearing of the appeal stayed until the security is provided
  3. 3.1st respondent to have the costs of the application

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

David Kenani Maraga
majority

Wrote the judgment

JM
majority
Philomena Mbete Mwilu
P. M. MwiluJA
Currently serving
majority
On appeal from
High Court of Kenya at Nairobi (Garissa)
Garissa High Court Election Petition No. 9 of 2013
Jurisdiction invoked
Appeal against the decision of the High Court in an election petition, with the interlocutory application brought under Rules 42, 47 and 107(3) of the Court of Appeal Rules

Relief refused

#

Security for the past costs of the petition (High Court costs)

The 1st respondent's High Court costs had not been taxed, so there was no figure to secure

p. 5

Striking out of the appeal in default of security

The court preferred a stay until security was provided rather than a default striking-out order at that stage

p. 5

Costs

The 1st respondent shall have the costs of this application.

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is right that a litigant, however poor, should be permitted to bring his proceedings without hindrance and have his case decided.
p. 3Access to justice for poor litigants
Each case should, however, be decided on its own merits care always being taken to ensure that the grounds upon which such applications are based are proved to the required standard.
p. 3Criteria for security for costs
we direct that the appellants shall within fifteen days of the date hereof deposit in court a further sum of Kshs.2 million or a bank guarantee for that sum.
p. 5Final orders - quantum of security
Consequently, we order that until the above stated security is provided, the hearing of this appeal is hereby stayed.
p. 5Final orders - stay pending security
The 1st respondent shall have the costs of this application.
p. 5Final orders - costs

Issues in the judgment

#
minor

The judgment inconsistently refers to the same party/authority names: 'Marco Tool & Explosives Ltd' in counsel's submission versus 'Marco Tool Explosives' and 'Marco Tool Enterprises' when the court applies it; the party described as 'respondents' in paragraph 23 is said to be the one who knows what they own, where 'appellants' appears intended, creating internal ambiguity.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (11)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Abdinasir Yasin Ahmed & 2 others v Ahmed Ibrahim Abass & 2 others [2014] KECA 104 (KLR)", Case Analysis (2014). Civil Appeal No 294 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/104/eng@2014-02-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.