Caselaw

REPUBLC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA PETITION CASE NO. 07 OF 2013 MARTIN SARAKWE WECHULI ………..…………………….....PETITIONER VERSUS INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION…..……………….....1ST RESPONDENT BUMULA CONSTITUENCY…………………..……….....2ND RESPONDENT BONFACE OKHIYA OTSIULA ………………………..…3RD RESPONDENT RULING 1. The application before court is by way of Notice of Motion dated 16 th November, 2015 by the 1st and 2nd respondents seeking to have the security deposited in court be shared equally among the 3 respondents in the sum of Kshs. 166,666/= to each so that the sum of Kshs. 333,332/= would be paid out to the 1st and 2nd respondents counsel. 2. The application was opposed in part by the 3rd respondents by way of a replying affidavit. The objector is to the extent that the 1st and 2nd respondents employed one counsel, filed one bill of costs and the proposed sharing would prejudice the 3rd respondent. 3. The 1st and 2nd respondents filed a joint bill of costs dated 17th March, 2014. Upon hearing the matter the taxing officer jointly awarded the 1st and 2nd respondents costs amounting to Kshs. 890, 214/= in total. 4. The 3rd respondent equally filed his bill of costs filed on 17 th April, 2014 and the court awarded him costs of Kshs. 809,558/=. 5. It is not lost to the court that the 2nd respondent was an agent of the 1st respondent and sued as such. 6. With the above background, I am of the view that the amount being held as security for costs being amounts due to the parties as their costs cannot possibly go to each of the parties in view of the relationship between the 1st and 2nd respondents. It would therefore be reasonable to share the sum of kshs. 500,000/- between 1st and 2nd respondents together and 3rd respondent separately for avoidance of doubt the sum of Kshs. 250,000/= to go to the 1 st and 2nd respondents and the other half being Kshs. 250,000/= to go the 3rd respondent. DATED AND DELIVERED AT BUNGOMA THIS 19TH DAY OF JANUARY, 2017. ALI-ARONI JUDGE.