Marco Tool & Explosives Ltd v Mamujee Brothers Ltd [1988] KECA 65 (KLR)
The bottom line
#A Kenyan court ruled that poverty alone cannot block an appeal — whoever demands security for costs must actually prove the appellant cannot pay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the full Court should direct further security for past costs of the High Court and costs of the appeal on a reference under Rule 54 from a single judge's dismissal
- 2.Whether the respondent/appellant's alleged inability to pay costs justified an order for security for costs
Key legal issues
#Circumstances in which security for past costs of the High Court may be ordered on appeal
Past costs of the lower court will only be secured sparingly and in exceptional circumstances; the English rule in Hall v Snodon Hubbard was departed from under the Kenyan rules
The court adopted the reasoning in Noormohamed Abudulla v Patel that the Kenyan rules confer wider powers than the English practice: security for the costs of the appeal is automatic, but past costs would be secured sparingly. It is difficult to visualise a case where both sets of costs would be secured in full; only a reasonable and modest amount would be ordered.
Factors relevant to the discretion to order security for costs
The court exercises an unfettered but judicial discretion; poverty alone should not bar an appeal, but bad faith or taking advantage of a respondent may tip the scales in favour of ordering security; the appeal's obvious success is also relevant
Drawing on Sir Travor Gould's observations in Noormohamed Abudulla v Patel, the court held that access to justice for the poor must be weighed against protecting respondents. Impecuniosity caused by the alleged wrongful act cannot be relied on; prior-incurred costs, prospects of success and bad faith are all relevant factors.
Whether the single judge's refusal to order further security should be disturbed on reference
The single judge could reasonably have concluded that it was inappropriate to give directions as to security; only failure to pay costs had been proved
The applicant failed to prove the respondent's inability to pay or bad faith; allegations such as the company having no registered office failed. The company may still have some business, and the suit business appeared of doubtful legality involving both parties. The full Court could not say the single judge was wrong.
Legal principles established
#- Poverty alone should not bar an impecunious appellant from pursuing an appeal; security for costs is a matter of unfettered but judicial discretion depending on the circumstances of each case
- The onus lies on the applicant for security for costs to prove the appellant's inability to pay or lack of good faith
Court orders
#- 1.The reference is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Rules 54 and 104 of the Court of Appeal Rules
Relief refused
#Order for further security for past High Court costs and costs of the appeal
Only failure to pay the debt or costs had been proved; the applicant did not discharge the onus of proving inability or bad faith, and the single judge reasonably found security inappropriate
Costs
The reference is dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently the reference is dismissed with costs.
it should not be poverty alone which brings down the procedural bar upon the impoverished head
The onus is on the applicant to prove such inability or lack of good faith, that would make an order for security reasonable
As the cases show the Court has an unfettered though judicial discretion to order or refuse security.
Issues in the judgment
#Case title, case number and neutral citation are not stated in the judgment text; the applicant and respondent are referred to only generically
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marco Tool & Explosives Ltd v Mamujee Brothers Ltd [1988] KECA 65 (KLR)", Case Analysis (1988). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/65/eng@1988-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.