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ELCDismissedNot stated in the judgment· [2017] KEELC 2390 (KLR)

Jesca Songole & another v Charles Amuyunzu Lwenya & another [2017] KEELC 2390 (KLR)

High Court of Kenya
12 July 2017
NMN.A. Matheka
1,138 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Kakamega dismissed a demand forcing plaintiffs to deposit Sh600,000 before continuing their case, because the defendants proved nothing.

What this practically means

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Executive summary

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The defendants/applicants filed a Notice of Motion dated 5th September 2016 under Order 26 Rules 1 and 5 of the Civil Procedure Rules 2010 seeking an order that the plaintiffs provide security for costs of Ksh. 600,000/-, failing which the plaintiffs' pending application for review dated 24th June 2016 be dismissed. The applicants argued that the plaintiffs were vexatious litigants whose suit had already been struck out as res judicata on 11th May 2016 by Hon. S. Mukunya, that unpaid costs from that ruling remained unsettled, and that the plaintiffs had no attachable assets, so costs could not be recovered if the review application failed. The plaintiffs/respondents opposed, contending that the deponent George Akoto did not substantiate the allegation that the plaintiff was a man of straw, that costs had not yet been taxed, and that the application was premature, speculative and oppressive. The court considered the cited authorities, including Kenya Educational Trust Ltd v Katherine S. M Whitton and Marco Tool & Explosives Ltd v Mamujee Brothers Ltd, and held that the applicant for security must prove the respondent's inability to pay costs due to poverty or lack of good faith. The defendants provided no evidential substantiation of their allegations. The Notice of Motion was dismissed entirely with costs to the plaintiffs/respondents.

Key legal issues

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01

Whether an order for security for costs was warranted

Holding

The application was not merited; the applicants failed to substantiate their allegations that the plaintiffs were men of straw or vexatious litigants

Reasoning

The court applied the principles in Kenya Educational Trust Ltd v Katherine S. M Whitton and Marco Tool & Explosives Ltd v Mamujee Brothers Ltd: the applicant bears the onus of proving inability to pay costs due to poverty or lack of good faith. Bare allegations that the plaintiff has no attachable assets and is a vexatious litigant, unsupported by evidence, and the fact that costs had not yet been taxed, meant no special circumstances existed to grant security. The power should not be used oppressively to stifle a genuine claim.

p. 3

Legal principles established

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  • In an application for security for costs, the applicant must establish that the respondent, if unsuccessful, would be unable to pay costs due to poverty; mere allegation is insufficient
  • The onus lies on the applicant for security for costs to prove the respondent's inability to pay or lack of good faith

Court orders

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  1. 1.The defendants/applicants' Notice of Motion dated 5th September 2016 is dismissed entirely
  2. 2.Costs of the application to the plaintiffs/respondents
Jurisdiction invoked
Order 26 Rules 1 and 5, Civil Procedure Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Jesca Songole & another v Charles Amuyunzu Lwenya & another [2017] KEELC 2390 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2390/eng@2017-07-12

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