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ELCDismissedNot stated in the judgment· [2026] KEELC 742 (KLR)

Mkota v Mochawa (Environment and Planning Appeal E002 of 2025) (Environment and Planning) [2026] KEELC 742 (KLR)

High Court of Kenya
9 February 2026
EWE. K. Wabwoto
1,226 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 Voi refused to order an appellant to deposit money as security for appeal costs because the claimant offered no real proof the appellant could not pay.

What this practically means

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Executive summary

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This ruling by E. K. Wabwoto J at Voi determined the Respondent's Notice of Motion dated 16th December 2025, brought under Order 42 Rule 14, Order 26 Rules 1, 4 and 5 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking an order compelling the Appellant to deposit security sufficient to cover the Respondent's costs of the appeal, and dismissal of the appeal upon failure to do so. The Respondent, acting in person, argued that the trial court had entered judgment in his favour with costs on 7th August 2025, and that the Appellant had no known movable or immovable assets in Kenya, making recovery of costs difficult. Counsel Mr. Wahome opposed on behalf of the Appellant, contending that the application would impede access to justice and the right to pursue an appeal. The court framed a single issue: whether the Respondent had made out a case for security for costs pending the appeal. Applying the Supreme Court decisions in Gatirau Peter Munya and Westmont Holdings, the court held that the applicant bears the onus of proving, with cogent evidence, that the respondent would be unable to pay costs if unsuccessful; mere allegation is insufficient. The court found that the Respondent's supporting affidavit furnished no evidence of the Appellant's financial instability, and noted that the trial court's costs had not been assessed and were therefore not recoverable at that stage. Balancing this against the Appellant's constitutional right of access to justice under Article 48, the court dismissed the application with costs in the cause. Tags: security for costs, appellate proceedings, burden of proof, access to justice, judicial discretion.

Key legal issues

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01

Whether an order for security for costs pending appeal should issue against the Appellant

Holding

No. The Respondent failed to discharge the evidentiary burden of establishing the Appellant's inability to pay costs, and the trial court's costs had not yet been assessed and so were not recoverable at this stage.

Reasoning

Order 42 rule 14 empowers the court, in its discretion, to order an appellant to give security for costs, including where the appellant is not ordinarily resident in Kenya or lacks sufficient property there. However, mere inability is not enough; the applicant must prove inability or lack of good faith. Relying on Gatirau Peter Munya and Westmont Holdings, the court found no cogent evidence of the Appellant's financial instability and noted that unassessed trial costs are not recoverable. The order sought would also risk impeding the Appellant's access to justice.

p. 3

Legal principles established

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  • In an application for security for costs, the applicant must prove, with evidence, that the respondent would be unable to pay costs if unsuccessful; mere allegation is not enough
  • The discretion to order security for costs must not stifle access to justice
  • The court must exercise the power to order security judicially and balance the parties' competing interests, including the constitutional right of access to justice under Article 48

Court orders

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  1. 1.The Respondent's Notice of Motion dated 16th December 2025 seeking security for costs of the appeal is declined and dismissed
  2. 2.Costs of the application shall be in the cause
On appeal from
Not stated (trial court)
Not stated
Jurisdiction invoked
Order 42 Rule 14, Order 26 Rules 1, 4 and 5 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Mkota v Mochawa (Environment and Planning Appeal E002 of 2025)  (Environment and Planning) [2026] KEELC 742 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/742/eng@2026-02-09

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