Kwale International Sugar Company Limited v Kenya Bureau of Standards & 5 others

2. The application is filed under Articles 10, 25(c), 50 and 159 of the Constitution of Kenya, Sections ЗA, 27 of the Civil Procedure Act (Cap 21) Laws of Kenya and Order 26 rules 1, 6(1) and Order 51 rules 1, 3 and 4 of the Civil Procedure Rules 2010 and all other enabling provisions of the law. 3. The several grounds in support of the application as laid out on the face thereof and expounded in the supporting affidavit sworn on 29th August 2025 by Esther Ngari, the managing director of KEBS can be summarized as hereunder. 4. That the plaintiff had shown inability or reluctance to pay costs amounting to KShs 663,010/= as assessed by the court which arose out of Mombasa High Court Constitutional Petition No. 226 of 2018 that the plaintiff filed against the 1st defendant which ended up at the Court of Appeal. The High Court allowed the petition in a judgment dated 7th November 2019 but the Court of Appeal overturned the decision in its judgment dated 29th July 2022 with costs to the 1st defendant/applicant with an order remitting the petition to the High Court for fresh hearing. 5. That following the decision of the High Court allowing its petition, the plaintiff had filed suit, initially against the 1st defendant/applicant alone, Mombasa High Court Civil Suit No. 1 of 2020, Kwale International Sugar Company Ltd v. Kenya Bureau of Standards seeking to recover USD 75,952,863/ = as special damages among other reliefs. The suit was amended on 24th June 2024 to seek USD 36, 441, 278/= as special damages besides other reliefs and also brought into the suit the 2nd to 6th defendants. The civil suit and the constitutional petition filed in the High Court at Mombasa had since been transferred to the High Court at Kwale for hearing and disposal. The were respectively given numbers Kwale High Court Civil Case No. 4 of 2023 and Kwale High Court Constitutional and Human Rights Petition No. E007 of 2024 which upon application of the plaintiff, had since been consolidated and the court ordered that they proceed as one with the constitutional petition being the lead file. 6. The 1st defendant applicant avers that the suit is baseless, the basis upon which it was filed, the judgment of the High Court in Mombasa High Court Constitutional Petition No. 226 of 2018 having been dismissed by the Court of Appeal. 7. The 1st defendant/applicant contends that for the reliefs sought by the plaintiff herein, the costs would be in the region of KShs 135,000,000/=. The applicant contends further that the plaintiff having failed to pay the costs of KShs 663,810/= it is unlikely that it will be able to pay the likely colossal costs envisaged in the present suit. 8. According to the 1st respondent/applicant, the basis upon which the suit was filed being the judgment of the High Court in the constitutional petition, having been set aside by the Court of Appeal, it is untenable that it is likely to succeed. 9. The 1st defendant/applicant avers that it has a bonafide defence to the suit. 10. The applicant avers further that when it initiated execution proceedings for recovery of the taxed costs of KShs 663,810/= in HC Constitutional Petition No. E007 of 2024, the plaintiff/respondent resisted attachment of its assets by barricading its premises for entry by Sure Auctioneers and police assistance had to be sought. The plaintiff then made a proposal to liquidate the sum by monthly installments of KShs 100,000/= which offer was rejected by the applicant with a caution to the plaintiff that under section 384 of the Companies Act, it could be deemed as unable to pay its costs and therefore liable to insolvency proceedings. 11. The 1st defendant deposes further that it had since come across information that in fact the plaintiff faces insolvency proceedings in High Court at Nairobi, Milimani Winding Up Petition No. 007 of 2019 by Epco Builders Ltd as petitioners. Epco Builders Ltd had on 11th August 2025 advertised in https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18296/eng@2025-11-04 2

page 2 of 10

the Daily Nation Newspapers to all creditors to take notice that a petition for the liquidation of Kwale International Sugar Company Limited had been filed by Epco Builders Limited. 12. Further, the plaintiff had taken out High Court Insolvency Cause No. E021 of 2021 in response to a statutory demand by Sybyl Kenya Ltd dated 16th April 2021 demanding KShs 661,125.30 and USD 74,913.30 under the Insolvency Act. In the Winding Up Cause, the plaintiff sought to set aside the statutory demand on grounds of the pending Winding Up Petition No. 007 of 2019 and that Sybyl Kenya Ltd had failed to join in the said Petition in spite of an advertisement in the newspapers to creditors to take notice of the liquidation proceedings against the plaintiff. 13. That by its own admission, the plaintiff is extremely riddled with debt to financial institutions both in Kenya and outside and has no free assets attachable to recover costs if its claim herein fails and it was ordered to pay the same. Its audited financial statements for the period 2016 to 2021 show that it is not a sustainable going concern and is a subject of insolvency. 14. That the plaintiff is deploying proxies and third parties to transact its business in an enterprise to unjustly enrich itself by putting its assets beyond the reach of its creditors and decree holders. 15. The 1st defendant avers further that the plaintiff is substantially foreign owned and controlled by legal persons in Mauritius and it had been moving its assets to companies where its directors are shareholders. 16. Further that the plaintiff’s pecuniary position is not attributable to the 1st defendant and the suit does not involve a matter of public importance. 17. The plaintiff opposed the application through a replying affidavit sworn on 5th September 2025 by Benson Nzuka Musili, the head of legal and board affairs, Pabari Group of Companies, of which the plaintiff is a member. The plaintiff challenges the various grounds on which the 1st defendant’s application is based as follows. 18. The plaintiff deposes that, the civil suit having been consolidated with the constitutional petition, there is no legal provision under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 for the court to make an order of security for costs. 19. The plaintiff deposes further that the application is made late in the day, with the aim of derailing the hearing of the main suit fixed for 22nd, 23rd and 24th October 2025 since all the grounds raised in support of the application were well in existence between the years 2019 and 2022. On that issue, the applicant submits that it came to learn of the plaintiff’s impecunious position after the plaintiff failed to settle its costs at once. 20. The consolidated case came up for pre-trial directions on 25th June 2025 and it was fixed for hearing to proceed on 22nd, 23rd and 24th October 2025. The present application was filed on 29th August 2025. 21. On the ground that the plaintiff is foreign owned and controlled from Mauritius, the plaintiff terms this as false and referring to the CR 2 annexed to the 1st defendant’s/applicant’s supporting affidavit, points out that Kenyan shareholders hold 80% of the issued shares while the remaining 20% are held by a Mauritian in the plaintiff company. 22. The plaintiff denies that it has transferred any of its assets elsewhere and deposes that no evidence has been adduced to back up that allegation. Yet, at the same time, it wonders that the 1st defendant has deposed that all the plaintiff’s assets are charged to its financiers. 23. It is the plaintiff’s position that where it sourced the funds and settled the costs of KShs 663,810/= to the 1st defendant should not be an issue of concern to the 1st defendant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18296/eng@2025-11-04 3

page 3 of 10

24. It is the plaintiff’s contention that the Insolvency Petition pending against it is no reason to infer that the plaintiff is insolvent. That in any case, the Insolvency petition against it is hopeless and there is pending litigation before the Supreme Court whether the petition should be prosecuted or not. 25. Concerning the audited statements referred to by the 1st defendant as showing that the plaintiff is insolvent, the plaintiff counters that the same show that the plaintiff has total assets of KShs 49 Billion against total liabilities of about KShs 40 Billion and that the losses referred to by the 1st defendant are trading losses which the 1st defendant has chosen to read as evidence of insolvency. 26. On the issue of the judgment of the High Court judgment in the plaintiff’s constitutional petition upon which the civil suit was premised having been set aside by the Court of appeal, the plaintiff deposes that the civil suit and the constitutional petition are separate causes seeking to vindicate different rights. And that in any case, the Court of Appeal set aside the judgment in the constitutional petition on grounds of procedural unfairness and not because it was hopeless. It is the plaintiff’s position that the High Court may still reach the same conclusion as it did before. 27. The plaintiff wonders why the 1st defendant would line up four witnesses to defend a hopeless suit instead of having applied for the same to be struck out at a preliminary stage. 28. The 2nd to 6th defendants did not wish to participate in the application and therefore did not file any responses. 29. The application was disposed of on written submissions filed by learned counsels for the 1st defendant/ applicant and the plaintiff/respondent as the only affected respondent thereto. Therefore, reference to the respondent in this ruling means the plaintiff. Learned counsels for the applicant made oral highlights of their submissions. The submissions are considered within the analysis that follows. 30. I have considered the application, the response thereto and the submission by the parties as well as the authorities provided. The issue for determination is whether the applicant has made out a case to warrant this court to exercise its discretion to call upon the respondent to offer security for costs in the present suit. 31. From the many grounds supporting the application, the applicant has submitted on three of them and stated that the rest of the grounds are self-evident. The issues submitted on are the alleged inability of the respondent to pay costs amounting to KShs 663,810/=, the pending Insolvency Petition against the respondent and third the plaintiff being a self-evidence predator and fortune hunter preying on public institutions. The applicant ultimately submits that the main issue for determination is whether the respondent ought to deposit security for costs that may ultimately be awarded to it, as a condition precedent to the hearing and determination of the case. 32. The guiding law on the issue of security for costs is Order 26 of the Civil Procedure Rules which provides in the relevant rules as follows: (1). 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. (2). … (3). Where it appears to the court that the substantial issue is which of two or more defendants is liable or what proportion of liability two or more defendants should bear no order for security for costs may be made. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18296/eng@2025-11-04 4

page 4 of 10

33. In the case cited by learned counsel for the applicant of Westmont Holdings SDN BHD v Central Bank of Kenya & 2 others [2023] KESC 11 (KLR) the Supreme Court gave guidance on the principles or guidelines courts should consider before issuing an order for security for costs. The Supreme Court stated as follows: “ The purpose of the security for costs order was to alleviate the concerns of potential difficulties in seeking to recover costs. An applicant of such an order was required to establish that the respondent, if unsuccessful in the proceedings, would be unable to pay costs. The objective was to protect a party from circumstances where one was dragged to court and made to incur costs due to litigation. It was meant to prevent frivolous and vexatious litigation.” 34. There is a preliminary issue for the court’s disposal raised by each party in support of its stated position and which can be merged and considered as one. The applicant has averred and submits that provision for security for costs is to ensure, enhance, and secure its right to fair hearing under article 50 of the Constitution, so that it is not left without recompense for costs in the event the plaintiff loses the suit and is unable to pay the same due to it being latently insolvent or for whatever reason it is unable to pay the costs due to its demonstrated impecuniosity. On its part the respondent contends that provision of security for costs is an impediment to the plaintiff’s right of access to justice under article 48 of the constitution 35. On the issue of security for costs being an impediment to the plaintiff’s right to access to justice under article 48 of the constitution versus the 1st defendants right to a fair hearing under article 50(1) of the constitution the Supreme Court dealt with it in the Westmont case cited above and held that: “ The rationale for security for costs was aimed at balancing the overarching objectives in the administration of justice as expressed under articles 48, 50, and 159 of the Constitution, that courts should aim to dispense justice. The costs protected the defendant or a respondent against the risk that a costs order made in its favour may be rendered ineffective by the plaintiff’s impecuniosity. An order for security for costs would normally affect the interest of plaintiff’s access to the court system, regardless of their financial status; shield a successful defendant from litigation costs; and conserve the courts processes: costs and security for costs could discourage frivolous claims, and encourage the parties to conduct litigation in a manner that was proportional to the matters at issue.” 36. In my understanding, it follows from this decision that the applicant has a right to seek security for costs as provided for under the law but the court has to ensure that, if available, the order does not prejudice the respondent’s right to access justice. 37. The Supreme Court went on to outline the issues the court should take into account in an application for security for costs. The Supreme Court said: “ In determining whether it was appropriate to make an order that a party give security for costs, the court could have regard to the following matters and such other matters as it considered relevant in the peculiar circumstances of each case: a. the prospects of success or merits of the proceedings; b. the genuineness of the proceedings; c. the impecuniosity of the plaintiff; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18296/eng@2025-11-04 5

page 5 of 10

d. whether the plaintiff's impecuniosity was attributable to the defendant's conduct; e. whether the plaintiff was effectively in the position of a defendant; f. whether an order for security for costs would stifle the proceedings and/or impede access to justice; g. whether the proceedings involved a matter of public importance; h. whether there had been an admission or payment in court; i. whether the delay by the plaintiff in commencing the proceedings had prejudiced the defendant; j. the costs of the proceedings; k. Whether the security sought was proportionate to the importance and complexity of the subject matter in dispute; l. the timing of the application for security for costs; m. whether an order for costs made against the plaintiff would be enforceable within the Republic of Kenya; n. the ease and convenience, or otherwise, of enforcing a Kenyan court judgment or order in the country of a non-resident plaintiff or appellant; o. if the plaintiff was a natural person, an order for security for costs could not be made merely on account of his or her impecuniosity. p. security for costs was to be given in such manner, at such time and on such terms (if any) as the court may by order direct; q. if the plaintiff failed to comply with an order under the instant rule, the court could order that the proceeding on the plaintiff's claim for relief in the proceedings be dismissed; r. the provisions of any Act under which the court could require security for costs to be given, such as the Elections Act; s. …” 38. This court, taking into account the issues as outlined by the Supreme Court will consider whether the application meets the threshold for provision of security for costs by the plaintiff. 39. I would consider the first issue to be whether the applicant has shown that the suit by the respondent is frivolous and vexatious. The reason for the applicant’s contention that the plaintiff’s suit is hopeless is that it is based on the judgment of the High Court which has since been dismissed by the Court of Appeal. 40. It is true that the judgment of the High Court was set aside by the Court of Appeal. However, as pointed out by the respondent in the replying affidavit and submissions, the ground for setting aside the judgment was a procedural fault and not the substance of the suit. Thus the case was remitted to the High Court for fresh hearing. There is no other reason offered by the applicant to support the allegation that the suit is hopeless. I have considered the pleadings by both parties and I do not find https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18296/eng@2025-11-04 6

page 6 of 10

the suit to be frivolous and vexatious as alleged by the applicant. I need not go into the factual and evidential basis of each party’s pleadings because, it will then touch on the merits of the case. 41. The applicant submits, reiterating the grounds upon which the application is based, that its plea that the respondent provides security for costs is based on the fact that the respondent is latently insolvent and has demonstrated that it is impecunious. Therefore, the security for costs is to ensure, that the applicant is not left without recompense for costs should the same be awarded to it by the court. It submits that such an order will ensure that its right to a fair hearing under Article 50 of the Constitution is not compromised. 42. In a rejoinder the plaintiff avers that seeking costs before the same are awarded and taxed amounts to unreasonable impediment of the plaintiff to access to justice contrary to article 48 of the constitution when it is the 1st defendant who brought about the financial losses to the plaintiff and who has filed suit to redress the injury. 43. On the respondent’s deposition that there is no legal foundation for depositing of security for costs in a constitutional petition, the applicant submits that the security for costs is sought in the civil suit and not constitutional petition. Further that this position is self-defeating because the respondent also deposed that the civil suit and the constitutional petition seek different reliefs. 44. The respondent on its part submits that there is considerable doubt that this court has jurisdiction to make that order given that the civil suit was consolidated with the constitutional petition as the lead file. 45. I agree with the applicant on this issue and further in the Westmont case cited above the Supreme Court held that the imposition of security for costs by a court was in itself constitutional. The respondent having decided to mount a two-pronged approach for its claim to vindicate its rights, it will have to bear with the legal requirements for each as the case turns around. It cannot escape by deciding to label the case one way now and probably another way as it pleases at each turn. The consolidation of the cases was for the convenience of disposal without losing sight of the issues raised in each. The cases of Evans Odhiambo Kidero & another v Director of Public Prosecutions & 2 others [2014] KEHC 6434 (KLR) and John Wekesa Khaoya V Attorney General [2013] Kehc 6082 (KLR) cited by the respondent to support its submissions are `not helpful. 46. Having said so, I must point out that the language of the submissions of the applicant on the issue of the civil suit and the constitutional petition having been consolidated by order of the court is intemperate and undesirable. A language that is meant to denigrate the standing of the court as a neutral arbiter of issue between parties in undesirable. I find the following statements made in the submissions for the applicant and referring to this court’s (differently constituted) decision to consolidate the civil suit and the constitutional petition, to be in bad taste and outside what is expected of civility in court proceedings: “ 18. It is outright juridical dimwittedness and a heresy to spew an assertion that a constitutional petition is capable of being consolidated qua an ordinary suit and in these queer claims of the plaintiff in the “Petition” and the “Civil suit” the two can only be heard distinctly as a Petition and a suit. Let the court be shown the jurisdiction whence the per incuriam alleged order of Justice Gregory Mutai is predicated in the Constitution, the law, common logic, sense and precedent. None exists and is capable of existence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18296/eng@2025-11-04 7

page 7 of 10

19. 47. A Constitutional Petition may be converted into an ordinary suit. An ordinary suit cannot be converted into a Constitutional Petition. That is common sense. It is tantamount to merging day and night.” In reference to the plaintiff, the applicant has stated in the submissions that: “ 17. The Plaintiff/Respondent is beneath its false facade of alleged big total assets which are primarily land of the Kenyan people and which was granted as free leases to it, a serial credit dodger that inflates and plays the game of smoke and mirrors of its asset base whereas it is a financial skunk and fraudulent enterprise wrecking financial havoc and mayhem on unsuspecting creditors.” 48. I have considered the supporting affidavit and unfortunately, I do not find any factual basis for the assertions in that statement. 49. It is quite in order for a litigant to disagree with the opposing party and even criticize the court’s findings on issues raised in the suit and express its displeasure about them. The constitution guarantees the right to freedom of expression under article 33 where free speech would fall and the right to freedom of opinion under article 32. It is therefore fine for a party to hold and express a contrary opinion to that of the court especially since the legal practice of this country is based on the adversarial system of dispute resolution. However, I would not find it appropriate to employ language that is intemperate and bordering on insults to a judicial officer especially when expressed in court submissions as reproduced above. It is different when expressed in social media out there, not within the hallowed precincts of the court house. Besides, article 33(3) requires that in the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others. It has to be remembered that they are the same courts that are reposed with the mandate to uphold and enforce the Bill of Rights. 50. The applicant submits that the replying affidavit sworn by Benson Nzuka Musili the head of legal and board services of Pabari Group of Companies is incompetent because that entity is a stranger to the civil suit herein. For that reason, according to the applicant, the application is not challenged. However, the deponent of the affidavit deposed that the plaintiff is part of a group of companies of which he is in charge of legal and board affairs. That to me means that for any company that falls in that group, he is in charge and therefore authorized to appear and swear an affidavit for it. 51. Some of the submissions on the issue of the alleged insolvency of the respondent are not contained in the applicant’s supporting affidavit, for instance, the submission on the correspondence between the respondent and Epco Builders. Moreover, if at all, they are issues, the basis of the insolvency petition which have not yet been considered by the Insolvency Court. This court would not go into considering them. 52. The applicant deposed in the supporting affidavit and submits that the plaintiff is impecunious for various reasons. 53. First is the issue of the respondent being unable to pay the taxed costs in the sum of KShs.663,810.00 arising from Civil Appeal No. 2 of 2020 in the Court of Appeal at Mombasa – Kenya Bureau of Standards vs. Kwale International Sugar Company Limited, the applicant submits that the fact that the costs were only paid by Invetec E.A. Ltd, which it refers to as, a proxy of the respondent, which also paid some KShs 50,000/= on behalf of the respondent, but only after the first cheque had bounced, to settle the auctioneer’s fees in order to forestall the impending execution, this is a demonstration that the plaintiff cannot afford to pay the more than KShs 350,000,000/= that may arise in this case if it https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18296/eng@2025-11-04 8

page 8 of 10

loses. The applicant submits that it cannot pursue the plaintiff’s proxies to settle its costs herein in the event that the same is so ordered. 54. The applicant submits further that in paragraph 12 of the plaintiff’s replying affidavit, it admitted that it was unable to pay the paltry KShs 663, 810/= yet the envisaged costs in the present suit are estimated to be colossal. In that paragraph, the plaintiff deposed as follows: “ While it is true that the costs of KShs 663,810/= were paid by a 3rd party, that is an internal matter between the plaintiff and its shareholders. They can choose from which sources they will pay whatever amounts.” 55. The applicant submits that for that reason, it is clear that the plaintiff is unable to pay its debts including costs adjudged and this satisfies the provisions of section 384 of the Insolvency Act (Cap. 53) Laws of Kenya which sets out the circumstances under which a company is deemed unable to pay its debts. 56. For the purposes of this application, the bottom-line is that the respondent has stated and applicant conceded that the plaintiff indeed settled the taxed costs on or about 28th July, 2025 and there is nothing pending in that regard. It cannot, for purposes of this application be held to be unable to pay its debts in that regard. 57. Second is the issue of a statutory demand made against the respondent by Sybil Kenya Limited dated 16th April, 2021 for failure to pay KShs. 661,125.30 and USD 74,913.30 under the Insolvency Act filed in the High Court at Milimani in Insolvency Cause No. E020 of 2021, Kwale International Sugar Company Limited vs. Sybyl Kenya Limited [2023] eKLR. The applicant submits that the response by the plaintiff to that statutory demand seeking that the same be struck out was an acknowledgement by the plaintiff/respondent that it was not only under insolvency proceedings in Insolvency Petition 007 of 2019 at Nairobi but also that it was unable to pay its debts and hence advised the other creditors to join in the insolvency proceedings already initiated. 58. I find that submission to be stretching the alleged insolvency of the plaintiff too far than is necessary. First, the statutory demand by Sybil Kenya Ltd having been struck off on account of the pending Insolvency Petition by Epco Builders, this court cannot revisit the issue to consider what the parties were alleging therein. The issue is closed. In any case I would believe the plaintiff was simply reminding Sybil Limited of the provisions of the law on insolvency and by the court striking out its statutory demand, it agreed with the plaintiff herein. The issue did not go as far as to determine the solvency or otherwise of the plaintiff. That is an issue that will be determined in Nairobi Insolvency Petition No. 007 of 2019. That petition is pending and as observed by the applicant in its submissions, the plaintiff is fighting to have it struck out as it is entitled to. Even if it is not struck out, the same has to be heard and determined on the merits. It is far from saying that for that reason the plaintiff is impecunious. 59. The deposition in the supporting affidavit by the applicant, followed by the submissions in similar manner that plaintiff/respondent is self-evidently a litigation predator and/or fortune hunter preying against public resources, public institutions and ultimately the people of the Republic of Kenya is bereft of any convincing facts to support it. 60. In the case of Jayesh Hasmukh Shah v Narin Haira & another [2015] eKLR, the court stated: “ It is now settled Law the order for security for costs is a discretionary one as long as that discretion is exercised reasonably, and having regard to the circumstances of each case.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18296/eng@2025-11-04 9

page 9 of 10

61. Having considered the grounds upon which the application was made and the response thereto, it is this court’s finding that the plaintiff has satisfactorily through the replying affidavit, responded to all the issues raised by the applicant in its application. 62. The final issue is whether the applicant addressed itself to the provisions of Order 26 Rule (3) which states that: “ Where it appears to the court that the substantial issue is which of two or more defendants is liable or what proportion of liability two or more defendants should bear no order for security for costs may be made.” 63. It is the plaintiff’s submission that the 1st defendant should not seek preferential treatment from the rest of the defendants by seeking security for costs. The plaintiff has cited the cases of Alpha Fine Foods Limited v Horeca Kenya Limited & 4 others [2021] KEHC 4068 (KLR) where the High Court stated that in considering an application for security for costs, the court should exercise its discretion in favour of granting the order only sparingly and in exceptional circumstances. That the courts’ discretion must be exercised in a manner which is not discriminatory and reflecting its rationale, not so as to put a litigant at a disadvantage compared with the defendant. 64. The applicant has not addressed this issue in its application or submissions. 65. I have looked at the plaintiff’s plaint amended on 14th June 2024. In paragraphs 51, 52 and 53 it pleads liability against all the defendants without discrimination. It then prays for general and special damages as outlined against all the defendants. It is apparent therefore that the issue of who of the defendants would be liable to the plaintiff, if at all the plaintiff was to succeed in its claim or what proportion of liability each of them would bare is for determination by this court. Consequently, in line with Rule 3 of Order 26, I find that the order to deposit security for costs cannot issue in this case. 66. From the foregoing analysis I find the 1st defendant/applicant has not shown good cause why the plaintiff should be called upon to deposit security for costs in the sum claimed in the application. The court finds no good reason to exercise its discretion in favour of the 1st defendant/applicant. The application is not merited and the same is dismissed. 67. Costs of this application shall be in the cause. Orders accordingly. WRITTEN, DATED, SIGNED AND DELIVERED ON THE VIRTUAL PLATFORM, TEAMS THIS 4TH DAY OF NOVEMBER 2025. ANDAYI W. F. JUDGE In the presence of: Kongere for the Plaintiff/Respondent. Wesonga appearing for and also holding brief for Wekesa for the 1st Defendant/Applicant. N/A for the 2nd, 3rd and 4th, 5th and 6th Defendants. Ummu: Court assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18296/eng@2025-11-04 10

page 10 of 10