Jesca Songole & another v Charles Amuyunzu Lwenya & another [2017] KEELC 2390 (KLR)
The bottom line
#The High Court in Kakamega dismissed a demand forcing plaintiffs to deposit Sh600,000 before continuing their case, because the defendants proved nothing.
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 defendants/applicants established grounds justifying an order for security for costs against the plaintiffs/respondents
- 2.Whether the plaintiffs' application dated 24th June 2016 should be dismissed for failure to furnish security
Key legal issues
#Whether an order for security for costs was warranted
The application was not merited; the applicants failed to substantiate their allegations that the plaintiffs were men of straw or vexatious litigants
The court applied the principles in Kenya Educational Trust Ltd v Katherine S. M Whitton and Marco Tool & Explosives Ltd v Mamujee Brothers Ltd: the applicant bears the onus of proving inability to pay costs due to poverty or lack of good faith. Bare allegations that the plaintiff has no attachable assets and is a vexatious litigant, unsupported by evidence, and the fact that costs had not yet been taxed, meant no special circumstances existed to grant security. The power should not be used oppressively to stifle a genuine claim.
Legal principles established
#- In an application for security for costs, the applicant must establish that the respondent, if unsuccessful, would be unable to pay costs due to poverty; mere allegation is insufficient
- The onus lies on the applicant for security for costs to prove the respondent's inability to pay or lack of good faith
Court orders
#- 1.The defendants/applicants' Notice of Motion dated 5th September 2016 is dismissed entirely
- 2.Costs of the application to the plaintiffs/respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 26 Rules 1 and 5, Civil Procedure Rules 2010
Relief refused
#Order directing plaintiffs to provide security for costs of Ksh. 600,000/- in an interest earning account in joint names of the advocates
Applicants did not substantiate allegations that the plaintiffs have no attachable assets or are vexatious litigants; no special circumstances warranting security were shown
Dismissal of plaintiffs' application dated 24th June 2016 in default of furnishing security
Follows from dismissal of the security for costs application
Costs
Application dismissed entirely with costs to the plaintiff/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.
the court finds that the defendant/applicant’s Notice of Motion dated 5 th September 2016, is not merited. The upshot thereof is that the said application is dismissed entirely with costs to the plaintiff/respondent herein.
the onus is on the applicant to prove such inability or lack of good faith that would make an order for security reasonable
in an application for security for costs, the applicant ought to establish that the respondent, if unsuccessful in the proceedings would be unable to pay costs due to poverty
That, the power to order provision of costs should not be used oppressively so as to stifle a genuine claim.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jesca Songole & another v Charles Amuyunzu Lwenya & another [2017] KEELC 2390 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2390/eng@2017-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.