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 (Application) 38 of 2013

Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others

Court of Appeal
5 February 2014
AVAlnashir VisramJMJ. MohammedJOJ. Otieno-Odek
6,547 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed it can order extra security for costs in election petition appeals, but only modest amounts backed by proof of the respondent's inability to pay.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Nyeri (Visram, Mohammed and Otieno-Odek, JJA) on an application by Gatirau Peter Munya, appellant in an appeal against the dismissal of an election petition challenging his election as Governor of Meru County, for security for costs of Kshs 4,800,000 against the 1st Respondent, Dickson Mwenda Kithinji, who had petitioned against his election and lost with costs capped at Kshs 2,800,000. The 1st Respondent had deposited Kshs 6,000 under rule 82(1)(d) of the Court of Appeal Rules and opposed the application on jurisdictional, estoppel and access-to-justice grounds. The court framed four issues: jurisdiction, relevant considerations, estoppel, and whether the order should issue. It held that rule 35 of the Elections (Parliamentary and County Elections) Petition Rules, 2013 subjects election appeals to the Court of Appeal Rules, giving the Court jurisdiction under rule 107(3) to order further security, including for past costs. It held that inability to pay through poverty must be proven, though on the facts the 1st Respondent's limited means were undisputed. It rejected the estoppel defence, holding that withdrawal of an application is neither estoppel nor estoppel by record, no representation having been made or relied upon to the respondent's detriment. Balancing Article 48 access to justice against the right to security for costs, and by analogy with the Kshs 500,000 trial security fixed by section 78(1)(b) of the Elections Act, the court allowed the application in part, ordering a further deposit of Kshs 500,000 within seven days, with costs of the application to abide the appeal.

Questions the Court framed

#

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

  1. 1.Whether the Court of Appeal has jurisdiction to hear and determine an application for security for costs in an Election Petition appeal
  2. 2.If the Court finds that it has jurisdiction, what matters should it take into consideration in determining the instant application
  3. 3.Whether the doctrine of estoppel is applicable
  4. 4.Whether the order sought should be granted

Key legal issues

#
01

Jurisdiction of the Court of Appeal to order security for costs in an election petition appeal

Holding

The Court has jurisdiction; rule 35 of the Petition Rules makes appeals from the Election Court subject to the Court of Appeal Rules, including rule 107(3) on further security for costs.

Reasoning

The court rejected the respondent's argument that the Elections Act, which provides for security only at trial, excluded appellate security orders. Rule 35 of the Elections (Parliamentary and County Elections) Petition Rules, 2013 provides that an appeal from the High Court is governed by the Court of Appeal Rules. Rule 107(3) empowers the Court to direct further security and security for past costs. The court also relied on authority that a court may not arrogate to itself jurisdiction through interpretation where legislation is clear.

p. 8
02

Matters the court considers on an application for security for costs

Holding

The applicant must prove the respondent's inability through poverty to pay costs; the discretion is unfettered but judicial, and the result must be reasonable and modest.

Reasoning

Relying on Marco Tool & Explosives Ltd v Mamujee Brothers Ltd and Hall v Snowdon Hubbard & Co, the court held the onus is on the applicant to prove inability to pay, not merely allege it. On the facts it was not disputed that the 1st Respondent, a teacher earning Kshs 11,000 monthly, was a man of limited means who could not pay costs if unsuccessful. The court also adopted the rationale from Noormohamed Abdulla that security protects a party from being left without recompense while preventing indefinite litigation by near-insolvent litigants.

p. 9
03

Whether estoppel barred the application after withdrawal of a similar application in the High Court

Holding

No estoppel arose; withdrawal of an application is not estoppel or estoppel by record, and no representation was made that enhancement would not be pursued.

Reasoning

Applying Serah Njeri Mwobi v John Kimani Njoroge, the court held estoppel requires a representation intended to affect legal relations and acted upon to the detriment of the other party. The 1st Respondent neither altered his position in reliance on any representation nor suffered detriment. Estoppel by record relates to a judgment of a court determining rights between parties; a withdrawal involves no such determination. A party may withdraw an application and file another similar one.

p. 9
04

Whether an order for enhanced security for costs violates the right of access to justice under Article 48

Holding

It does not; the court must balance access to justice against the right to security, and a further Kshs 500,000 was not an unreasonable impediment.

Reasoning

The court invoked Article 24(1)(d) permitting limitation of rights where necessary to prevent prejudice to others' rights, and relied on Johnson Muthama (upholding security provisions against an Article 48 challenge) and Patrick Ngetakimanzi (proportionality between access to justice and security for costs). Parliament itself fixed Kshs 500,000 as trial security for gubernatorial petitions without considering it an impediment; by analogy a further Kshs 500,000 on appeal was proportionate and in the interests of justice.

p. 12

Legal principles established

#
  • An appeal from an Election Court is governed by the Court of Appeal Rules, and by virtue of rule 107(3) the Court of Appeal has jurisdiction to entertain an application for further security for costs in an election petition appeal.
  • An applicant for security for costs must prove, not merely allege, that the respondent if unsuccessful would be unable to pay costs due to poverty.
  • Withdrawal of an application does not constitute estoppel or estoppel by record in judicial proceedings; estoppel requires a representation acted upon to the other party's detriment.
  • In considering security for costs the court must balance the right of access to justice against the right to security for costs.

Court orders

#
  1. 1.The 1st Respondent to deposit a further security for costs of Kshs 500,000 within 7 days from the date of the ruling
  2. 2.Costs of the application to abide by the outcome of the Appeal

The bench

#

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

AV
majority
JM
majority
JO
majority
On appeal from
High Court
Election Petition No 1 of 2013
Jurisdiction invoked
Rule 35 of the Elections (Parliamentary and County Elections) Petition Rules, 2013 read with rule 107(3) of the Court of Appeal Rules; Article 164 of the Constitution

Relief refused

#

Security for costs of Kshs 4,800,000 as sought by the Applicant

The trial court only capped costs at Kshs 2,800,000 (not assessed) and there was no justification for Kshs 2,000,000 for the appeal; the court fixed further security at Kshs 500,000 by analogy with section 78(1)(b) of the Elections Act

Costs

The costs of this Application shall abide by the outcome of the Appeal.

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.

We allow the Application for security of costs and order that the 1st Respondent deposits a further security for costs of Kshs 500,000 (Five Hundred Thousand Only) within 7 days from the date hereof. The costs of this Application shall abide by the outcome of the Appeal.
p. 12Final orders - further security for costs granted
Accordingly, this Court in determining an appeal from an Election Court is governed by the Court of Appeal Rules. By virtue of the foregoing provisions, we find that this Court has jurisdiction to entertain an application for security for costs under rule 107 of the Rules.
p. 8Jurisdiction over security for costs in election petition appeals
In any civil proceedings, a party may withdraw his/her application and may even file another similar application. Withdrawal of an application does not constitute estoppel in judicial proceedings.
p. 2Estoppel and withdrawal of applications
It is therefore imperative in consideration of an application for security of costs, for the Court to balance the competing rights of the parties, that is the right to access to justice and the right to security for costs.
p. 10Balancing access to justice and security for costs
In an application for security for costs, the applicant ought to establish that the Respondent, if unsuccessful in the proceedings, would be unable to pay costs due to poverty. It is not enough to allege that a Respondent will be unable to pay costs in the event that he is unsuccessful. The same must be proven.
p. 8Burden of proof on security for costs applications

Issues in the judgment

#
minor

Headnote holding 3 is garbled and internally incoherent, conflating the parties' positions.

minor

Headnote states inability to pay 'had to be proven', yet the court accepted limited means as 'not in dispute' without formal proof.

minor

The respondent's name is spelled inconsistently (Seipai/Sejpal) in the judgment.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (25)

#

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, "Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others", Case Analysis (2014). Civil Appeal (Application) 38 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/876/eng@2014-02-05

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