Cyprian Awiti & another v Independent Electoral and Boundaries Commission & 3 others [2018] KECA 536 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a bid to make Homa Bay's Governor and IEBC pay Ksh.20 million security before hearing their election appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 3rd and 4th respondents were entitled to an order that the appellants and the 1st respondent deposit security for past costs of the suit and further security for the costs of the appeal in the sum of Ksh.20 million
- 2.Whether Rule 107 of the Court of Appeal Rules, 2010 (providing for further security) or Rule 27 of the Court of Appeal (Election Petition) Rules, 2017 (which does not) governs security for costs in an election petition appeal
- 3.Whether an order for security for costs may be made against a cross-appellant
- 4.Whether the applicants proved that the respondents would be unable to pay costs should the appeal fail
Key legal issues
#Whether the 2010 Rules or the 2017 Rules govern further security for costs in election petition appeals
The 2017 Rules prevail to the extent of any inconsistency; they provide for a Ksh.500,000 deposit and past costs security but not further security
The court compared Rule 27 of the 2017 Rules with Rule 107 of the 2010 Rules and found that only the 2010 Rules provide for further security. Rule 4(3) of the 2017 Rules expressly resolves conflicts in favour of the 2017 Rules on matters relating to election petition appeals, and Rule 4(2) permits resort to the 2010 Rules only where the 2017 Rules are silent and not inconsistent. Accordingly the applicants' claim for further security founded on Rule 107 of the 2010 Rules could not stand.
Whether the applicants proved inability to pay costs
The onus lay on the applicants and was not discharged; the 1st and 2nd appellants, as sitting Governor and Deputy Governor serving second terms, were not shown to be impecunious
Relying on the Munya decision, the court held that a bare allegation that a respondent will be unable to pay costs is insufficient; the inability must be proved. The 1st and 2nd appellants draw salaries and allowances by virtue of their offices, and the 1st respondent is a constitutional commission funded by Parliament. Allegations of prior failure to pay costs were unsupported by proof, so the foundation for any security order collapsed.
Whether security for costs can be ordered against a cross-appellant
Yes; a cross-appellant is for practical purposes an appellant and cannot escape a security order by semantics
Mr. Orego argued that the 2017 Rules refer to an appellant and not a cross-appellant, so no security order could issue against the 1st and 2nd respondents who had filed a notice of cross-appeal. The court rejected this, noting that Rule 93(1) of the 2010 Rules permits a respondent who desires the decision below to be varied or reversed to give notice, and that a cross-appeal is further litigation by a party asserting an appellate claim. The distinction was dismissed as splitting hairs.
Legal principles established
#- In an election petition appeal, where the Court of Appeal (Election Petition) Rules, 2017 conflict with the Court of Appeal Rules, 2010, the 2017 Rules prevail; the 2017 Rules make provision for a deposit of Ksh.500,000 and for past costs security but no provision for further security for costs.
- An applicant for security for costs must prove, not merely allege, that the respondent would be unable to pay costs if unsuccessful in the proceedings.
- A respondent who files a notice of cross-appeal is, for the purposes of orders for security for costs, to be treated as an appellant; a security-for-costs order may be made against a cross-appellant.
Court orders
#- 1.The Notice of Motion dated 19th March 2018 seeking security for costs and consequential orders is dismissed
- 2.The applicants (3rd and 4th respondents) shall pay the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Homabay
- H.C.E.P. No. 1 of 2017
- Jurisdiction invoked
- Rule 27 of the Court of Appeal (Election Petition) Rules, 2017 read with Rules 42, 47 and 107(3) of the Court of Appeal Rules, 2010
Relief refused
#Order for deposit of security for past costs of the suit (capped at Ksh.6 million) and further security for the costs of the appeal totalling Ksh.20 million
The applicants bore the onus of proving that the respondents would be unable to pay costs and did not discharge it; the 2017 Rules prevail over the 2010 Rules and make no provision for further security
Stay of the appeal pending deposit of security, or striking out of the appeal in default of compliance
The motion was found to lack merit and was dismissed in its entirety
Costs
The motion is dismissed with costs to the appellants and the 1st and 2nd respondents (the applicants to bear the costs of the 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.
The 2017 Rules, however, make provision for payment of past security and a deposit of Ksh.500,000 only. There is no provision for security of further 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.
The sum total of the above is that a cross-appellant engages in further litigation by way of a cross-appeal and it is preposterous for such a litigant to argue that he/she is not an appellant but a cross appellant.
For the reasons stated above, we find no merit in the motion. It is dismissed with costs.
Issues in the judgment
#The judgment's heading states the High Court decision was 'dated 20th February, 2017' while the body says judgment was 'dated 20th February, 2018'; the brief records 20 February 2018 as stated in the substantive narrative.
The 2nd respondents' submissions are stated as filed on '23rd April, 2013', which is inconsistent with the 2018 chronology and appears to be a typographical error.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cyprian Awiti & another v Independent Electoral and Boundaries Commission & 3 others [2018] KECA 536 (KLR)", Case Analysis (2018). Election Petition Appeal (Application) No. 5 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/536/eng@2018-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.