Wambua v Ngilai

this suit in the event the said costs are awarded to him. He reiterates that the Plainti who is acting in person has failed to disclose his physical address. Further, that the suit land can fetch Kshs. 5,000,000 in the open market today. 3. The Plainti Antony Mwau Wambua opposed the instant Application by ling a Replying Adavit where he deposes that it is made in bad faith and is intended to diminish or stie him from enjoying his right to access justice. He contends that the Applicant lacks a credible Defence to his claim and is engaging in side shows. Further, that he is a Kenyan not a foreigner. He avers that the Applicant has made a general statement that he pays security for costs without any proof thereof or failed to meet the required threshold. He argues that the allegation that he is not known to the Applicant is not a legal requirement to deposit costs. He insists he is a person of means with various assets. He reiterates that the Applicant has not demonstrated his inability to pay costs. 4. The Application was canvassed by way of written submissions although it is only the Defendant that led his. Analysis and Determination 5. I have considered the instant Notice of Motion Application including the respective Adavits as well as the Defendant’s submissions and the only issue for determination is whether the Plainti should be directed to deposit into court the sum of Kshs. 300,000 as security for costs to the Defendant within thirty (30) days from the date hereof. 6. The Defendant in his submissions reiterated his averments as per the Supporting Adavit and insisted that he will have a great challenge in recovering costs from the Plainti in the event the Plainti’s suit does not succeed. He argues that he does not know the Plainti nor his source of income. To buttress his averments, he relied on the following decisions: Mutethya Ali v Gregory Mathew Kyalo (2022) eKLR and Kihiumwiri Farmers Company Limited v Breeze Investments Company Ltd & 3 Others (2019) eKLR. 7. The Defendant has sought security for costs from the Plainti amounting to Kshs. 300,000 claiming he does not know his physical address nor his source of income. 8. On security for costs, Order 26 Rule 1 of the Civil Procedure Rules provides that: “ In any suit the court may order that security for the whole or any part of the costs of any defendant or third or subsequent party be given by any other party.” 9. On providing security for costs, the Court of Appeal in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR, held that:“ 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.” 10. While in Thomas Opiyo & 123 others v Teleposta Pension Scheme Registered Trustees [2017] eKLR, it was held that:“ In my view the determinant factor for consideration in an application for security for costs is whether the defendants recovery of its costs, if it is successful in litigation would be dicult and costly. I am not satised that the defendant has laid a proper basis for this relief. There https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21487/eng@2023-11-14 2

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is no evidence that the defendant’s costs in ELC No. 1348 of 2013 have been taxed and the plaintis called upon to settle the same and they have been unable to do so. The defendant has not demonstrated that it would be dicult and costly for them to recover their costs from the plaintis if it is successful in its defence.” 11. In this instance, the Applicant has alleged the Respondent will not be able to pay costs as he does not know his physical address nor source of income. The Respondent insisted that he is a man of means and is able to pay costs. I note the dispute herein revolves around claim for land through adverse possession and currently the Respondent is being represented by an Advocate. Except for the allegations of not knowing the Respondent’s residence and his source of income, the Applicant has not demonstrated that the Respondent would be unable to pay for costs of the suit in the event he is not successful. 12. Based on the facts as presented while associating myself with the decisions cited, I nd that the Applicant’s averments in seeking security of costs are mere allegations with no proof. 13. In the circumstances, I nd the instant Notice of Motion Application dated the 1st March, 2023 unmerited and will dismiss it. 14. Costs will be in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS THIS 14TH DAY OF NOVEMBER, 2023 CHRISTINE OCHIENG JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21487/eng@2023-11-14 3

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