Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment· [2026] KEELC 2630 (KLR)

Lukio v Lebanguti & another (Land Case Appeal E002 of 2026) (Environment and Land) [2026] KEELC 2630 (KLR)

Court of Appeal (application arising in an appeal; security for costs)
6 May 2026
EWE. K. Wabwoto
1,508 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to make an appellant deposit money as security for his opponents' legal costs because they offered no proof he couldn't pay.

What this practically means

#

Executive summary

#
The Respondents in an appeal brought a Notice of Motion dated 12th February 2026 under Order 42 Rule 14 and Order 26 Rules 1, 4 and 5 of the Civil Procedure Rules 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking an order compelling the Appellant to deposit security for their costs of the appeal and, in default, dismissal of the appeal. They relied on the joint affidavit of Alphonce Meja Lebanguti and Peter Lebanguti Melewuni, alleging the trial court had on 15th January 2026 given judgment in their favour, that the appeal was malicious and frivolous, and that the Appellant had no known movable or immovable assets in Kenya. The Appellant, Petro Simon Lukio, opposed through a replying affidavit sworn on 20th February 2026, contending the application was frivolous, an afterthought and an abuse of process, and that the judgment contained no monetary award against him. The single issue was whether the Applicants had made out a case for an order for security for costs. Relying on Gatirau Peter Munya v Dickson Mwenda Githinji and Westmont Holdings SDN BHD v Central Bank of Kenya, E. K. Wabwoto J held that the onus lies on the applicant to prove inability or lack of good faith; mere allegation suffices not. Finding no cogent evidence of the Appellant's financial instability, noting the trial costs were unassessed and unrecoverable at that stage, and warning that security would stifle access to justice under Articles 48 and 159(1), the court dismissed the application in its entirety, with each party bearing its own costs.

Key legal issues

#
01

Whether security for costs should be ordered against the Appellant pending the appeal

Holding

No — the application was dismissed because the Applicants produced no cogent evidence of the Appellant's inability to pay costs.

Reasoning

Under Order 42 rule 14 the court has discretion to order an appellant to furnish security for costs of the appeal. Citing Gatirau Peter Munya and Westmont Holdings, the court held that mere allegation of inability is insufficient; the applicant bears the onus of proving inability or lack of good faith. The Applicants' affidavit contained no evidence that the Appellant was financially unstable, and the trial court's costs had not been assessed and were not yet recoverable. Ordering security would offend Westmont Holdings, the overriding objective and Article 48 access to justice.

p. 3

Legal principles established

#
  • The applicant for security for costs must prove inability or lack of good faith; mere allegation is insufficient
  • The discretion to order security for costs must not stifle access to justice

Court orders

#
  1. 1.The Application dated 12th February 2026 is dismissed in its entirety
  2. 2.Each party to bear own costs
On appeal from
Trial court (not named in judgment)
Jurisdiction invoked
Order 42 Rule 14 and Order 26 Rules 1, 4 and 5 of the Civil Procedure Rules 2010; Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Lukio v Lebanguti & another (Land Case Appeal E002 of 2026)  (Environment and Land) [2026] KEELC 2630 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2630/eng@2026-05-06

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