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Court of AppealPartially AllowedCivil Appeal (Application) No. 287 of 2013· [2013] KECA 63 (KLR)

Lydia Mathia v Naisula Lesuuda & 1 other

Court of Appeal
20 December 2013
2,422 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling of the Court of Appeal at Nairobi (Githinji, Mwera and Mwilu, JJ.A.) determines an interlocutory application by Naisula Lesuuda, the 1st respondent in an appeal by Lydia Mathia against the dismissal of High Court Election Petition No. 13 of 2013 by R. E. Ougo, J. on 27th September 2013. The applicant sought further security for costs of the appeal of shs. 6,000,000/-, a stay of the appeal pending the deposit, and striking out in default. The dispute arose from the IEBC's gazettement of TNA's nominated senators, in which the appellant (ranked 3rd on the party list) was omitted in favour of the applicant (ranked 5th). The Court held that the security deposit under section 78 of the Elections Act is confined to election petitions in an Election Court and does not extend to appeals; importing it to appeals would amount to judicial legislation. Instead, Rule 107(3) of the Court of Appeal Rules governs, informed by the principles in the cited East African and Kenyan authorities. Balancing the applicant's interest in cost protection against the appellant's constitutional rights under Articles 38(2)(a) and 48, the Court held that the statutory maximum of shs. 500,000/- should guide the exercise of discretion and that excessive security would impede access to electoral justice. The application was allowed only to the extent that the appellant was ordered to deposit shs. 500,000/- within 30 days, the appeal stayed pending that deposit, and liberty given to apply for dismissal on default; costs of the application were made costs in the appeal.

Key legal issues

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01

Scope of section 78 of the Elections Act on security for costs

Holding

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.

Reasoning

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.

p. 3
02

Governing law for further security for costs on an appeal from an Election Court

Holding

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.

Reasoning

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.

p. 4
03

Interaction of security for costs with constitutional rights of appeal and access to justice

Holding

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.

Reasoning

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.

p. 4
04

Quantum of further security in election appeals

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.The appeal is stayed pending the provision of further security
  3. 3.In default of provision of additional security, the 1st respondent be at liberty to apply for the dismissal of the appeal
  4. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.