Martin Sarakwe Wechuli v Independent Electoral and Boundaries Commission,Bumula Constituency & Bonface Okhiya Otsiula [2017] KEHC 8133 (KLR) | Security For Costs | Esheria

Martin Sarakwe Wechuli v Independent Electoral and Boundaries Commission,Bumula Constituency & Bonface Okhiya Otsiula [2017] KEHC 8133 (KLR)

Full Case Text

REPUBLC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

PETITION CASE NO. 07 OF 2013

MARTIN SARAKWE WECHULI  ………..…………………….....PETITIONER

VERSUS

INDEPENDENT ELECTORAL

AND BOUNDARIES COMMISSION…..……………….....1ST RESPONDENT

BUMULA CONSTITUENCY…………………..……….....2ND RESPONDENT

BONFACE  OKHIYA OTSIULA ………………………..…3RD RESPONDENT

RULING

1. The application before court is by way of Notice of Motion dated 16th November, 2015 by the 1st and 2nd respondents seeking to have the security deposited in court be shared equally among the 3 respondents in the sum of Kshs. 166,666/= to each so that the sum of Kshs. 333,332/= would be paid out to the 1st and 2nd respondents counsel.

2. The application was opposed in part by the 3rd respondents by way of a replying affidavit.  The objector  is  to the extent that the 1st and 2nd respondents employed one counsel, filed one  bill of costs and the proposed sharing would prejudice the 3rd respondent.

3. The 1st and 2nd respondents filed a joint bill of costs dated 17th March, 2014.  Upon hearing the matter the taxing officer jointly awarded the 1st and 2nd respondents costs amounting to Kshs. 890, 214/= in total.

4. The 3rd respondent equally filed his bill of costs filed on 17th April, 2014 and the court awarded him costs of Kshs. 809,558/=.

5. It is not lost to the court that the 2nd respondent was an agent of the 1st respondent and sued as such.

6. With the above background, I am of the view that the amount being held as security for costs being amounts due to the parties as their costs cannot possibly go to each of the parties in view of the relationship between the 1st and 2nd respondents. It would therefore be reasonable to share the sum of kshs. 500,000/- between 1st and 2nd respondents together and 3rd respondent separately for avoidance of doubt the sum of Kshs. 250,000/= to go to the 1st and 2nd respondents and the other half being Kshs. 250,000/= to go the 3rd respondent.

DATED AND DELIVERED AT BUNGOMA THIS 19TH DAY OF JANUARY, 2017.

ALI-ARONI

JUDGE.