Lydia Mathia v Naisula Lesuuda & 1 other
The bottom line
#Kenya's Court of Appeal capped security for costs in an election appeal at KSh 500,000, protecting candidates' constitutional right to appeal from crushing financial demands.
What this practically means
#Executive summary
#Key legal issues
#Scope of section 78 of the Elections Act on security for costs
Section 78 applies solely to election petitions in an Election Court and does not extend to appeals; importing it to appeals would be judicial legislation.
The Court read section 78 as a whole together with the definitions of 'petition' and 'Election Court' in section 2 and the Election Petition Rules, and concluded the deposit requirement ends with the conclusion of the petition. To extend it to appeals would amount to legislating, which is not the Court's function.
Governing law for further security for costs on an appeal from an Election Court
Rule 107(3) of the Court of Appeal Rules governs, and the Court may weigh the electoral nature of the appeal in exercising its discretion.
The Court held that although Rule 107(3) applies, it does not preclude the Court from giving consideration and weight to the fact that the appeal arises from an election petition, given the public law character of electoral disputes.
Interaction of security for costs with constitutional rights of appeal and access to justice
Exceedingly high security would deny the statutory right of appeal and impede access to electoral justice under Articles 38(2)(a) and 48 of the Constitution.
The Court balanced the applicant's need for cost protection against the appellant's constitutional right to seek elective office and the access-to-justice guarantee, holding that any further security must be reasonable and affordable; a requirement obtainable only through great strain would amount to denial of the right of appeal.
Quantum of further security in election appeals
The statutory maximum of shs. 500,000/- required for election petitions should guide the Court's discretion, though quantum depends on the circumstances of each appeal.
Finding the mandatory shs. 2,000/- deposit under Rule 107(1) hardly reasonable for so substantial an appeal, the Court nonetheless held it anomalous to order security far exceeding the shs. 500,000/- statutory ceiling, and ordered that sum.
Legal principles established
#- The deposit for security for costs under section 78 of the Elections Act applies only to election petitions filed in an Election Court, not to appeals in the Court of Appeal.
- Applications for further security for costs in appeals from Election Court are governed by Rule 107(3) of the Court of Appeal Rules, and the statutory maximum of shs. 500,000/- under section 78 of the Elections Act should guide the quantum.
- An order for further security for costs must be reasonable and must not impede access to justice.
Court orders
#- 1.The appellant to provide further security for costs of the appeal in the sum of shs. 500,000/- to be deposited in a joint bank account within 30 days
- 2.The appeal is stayed pending the provision of further security
- 3.In default of provision of additional security, the 1st respondent be at liberty to apply for the dismissal of the appeal
- 4.Costs of the application to be costs in the appeal
- On appeal from
- High Court of Kenya at Nairobi
- Election Petition No. 13 of 2013
- Jurisdiction invoked
- Rules 42, 47 and 107(3) of the Court of Appeal Rules 2010; appeal itself lies under section 85A of the Elections Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lydia Mathia v Naisula Lesuuda & 1 other", Case Analysis (2013). Civil Appeal (Application) No. 287 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/63/eng@2013-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.