Reamaton Ltd v Uganda Corporation Creameries Ltd & Anor [2000] UGSC 22 (17 October 2000)

Full Case Text

The HEM-THE Child Justice

## AT MENGO IN THE SUPREME COURT OF UGANDA REPUBLIC OF UGANDA

1' M' N' LZEKOOKO' 12C) (COKYW:

## **000Z** to **ON** $\overline{I}$ APPLICATION CTATT

BELMEEN

REAMATON Ltd.::::::::::::::::::::::::::::: APPLICANT

**QNA**

)::::::::: BEZDONDENLZ S. HENRY KAWALYA) 1. UCANDA CORPORATION CREAMERIES Ltd.)

arising from Civil Appeal No. 2 of 2000). (An Application for further security for costs

## **ENTING:**

first respondent and the second respondents respectively. respondent in that appeal. I will hereinafter refer to the parties as the applicant and the appeal to this court from the decision of the Court of Appeal. The present applicant is the The present respondents are the appellants in Civil Appeal No.2/2000 which is an

$000$ Jo Z $0$ N respondents do furnish security for further costs, for past costs and costs of Civil Appeal Rules of the Court and section 404 of the Companies Act, praying for an order that the has therefore brought this application by notice on motion under Rule 100 (3) of the considers that on the facts of these proceedings, that statutory deposit is inadequate. It deposit of security for costs as required by the Rules of the Court. The applicant The respondents deposited in the registry of the Court Shs.400,000/= as statutory

supporting the application. The applicant sued the respondents in the High Court (Civil The general background to this application has been set out in the affidavit

for costs. now asks that the respondents should be ordered to pay Shs. ISOm/= as further security statutory security for costs. The applicant argues, however, that this amount is too low. It has no chance of success. The respondents as earlier stated deposited $Shs.400,000$ as validity of that appeal to this Court is being questioned by the applicant on grounds that it respondents lodged an appeal to this court against the ruling of the Court of Appeal. The Court of Appeal condemned the respondents to pay costs to the applicant. Eventually the the instance of the applicant, the Court of Appeal struck out the notice of Appeal. The decision of the High Court in respect of the whole final judgment of the High Court. At Subsequently the respondents instituted an appeal to the Court of Appeal against the applicant for the total sum, as claimed, of $U$ \$365,500/= with interest and costs. Court. At the conclusion of the trial, the trial judge gave a decree in favour of the because the respondents admitted this sum. There-affer a trial was held in the High the respondents' coffee. The applicant obtained a preliminary judgement for US\$211,200 suit 738/95) seeking to recover US\$365,000, being a total refinancing loan to purchase

state as follows:-Babigumira, Counsel for the applicant, argued ground (a) to (d) first. These four grounds The applicant listed nine grounds $[(a)$ to $(i)]$ in the notice of motion. Mr.

- was no appeal against that sum so entered. date of judgment, US\$211,200 being an amount entered on admission and there the sum of US\$360,000 (sic) with interest at 25% from the time of filing until the The applicant obtain (sic) judgment in the High Court against the respondents in $(g)$ - $(q)$ That the respondents' Appeal has no slightest probability of success.

cent has been paid towards the taxed and allowed costs.

$(c)$ The applicant has been put to undue expenses in defending proceedings filed by

the respondents haphazardly/recklessly and or in abuse of $Count\ Process.$

neary costs which have been taxed and allowed and more yet to be taxed but no $(p)$ The respondents' numerous haphazard/reckless proceedings have resulted in

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some payments were made albeit intermittently and through coercive procedures. As will be seen later, the contents of ground (d) are not quite accurate because

Civil Appeal No. 9 of 1989 (unreported) is to that effect. inadequate: A. S. Patel Vs. American Express International Banking Corp. Sup:-Court aver in the motion and or the affidavit that security already deposited for costs is is proper for me to make the order his client is now seeking. His client cannot merely Mr. Babigumira, concedes that his client bears the burden of satisfying me that it

reported in Supreme Court Civil Appeal Judgments (1996) in support. cited G. M. Combined vs. A. K. Detergents Supreme Court, Civil Appeal No. 34 of 1995 the respondents to deposit further security in the sum of shs. $150m/$ =. Mr. Babigumira pending appeal (Supreme Court Civil Appeal No.2/2000). So he has asked me to order reference and not less than $30m' = in respect$ of the present application together with the reference to that Court. Counsel anticipates costs of at least $Sha.20m/=$ from that gave leave to appeal has since been set aside by the full Court of Appeal as a result of a 1999 has no probability of success because the order of a single Justice of Appeal who Court of Appeal remains unpaid. He argued that Court of Appeal Civil Appeal No. 44 of contends that $Shs. Z7,447,000/$ = the amount taxed and allowed on Bills of costs in the Court remain unpaid (see paragraphs 13 and 17 of the affidavit (infra). He further advocate in their firm, and contends that $Shs. Z74,584/=$ taxed and allowed in the High In his submissions Mr. Babigumira relied on the affidavit of Mr. Mwebembezi, an

100(3) of the Supreme Court Rules in this court pending an appeal. an for Security for costs during trial stage. The present application was made under Rule the High Court. Those two provisions and that case are relevant in instances of seeking was decided under O.23 Rule 1 of Civil Procedure Rules and S.404 of Companies Act in (Supra) is distinguishable. On this point I agree with Mr. Kihika because $G. M.$ Combined Mr. Kipika, Counsel for the respondents, submitted that G. M. Combined case

O.23 Rule I reads as follows:-

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give security for the payment of all costs incurred by any defendant". of the Court may if it deems fit order a plaintiff in any suit to

τηο τος ανα παγ σταγ αιι ργοσε απίτι της εξαπτίλ το βίνεπ." if successful in his defence, require sufficient security to be given for τιμαι της company will be unable to pay the costs of the defendant if it appears by credible testimony that there is reason to believe γρια γριμία το μοιλίμα μαλιμβίντι το μιτροποιά γυσικό ματις μαλγ "Where a limited company is plaintiff in any suit or other legal And S.404 of the Companies Act reads as follows:-

an appeal. rule shows that a court exercises discretion to order for further security for costs pending Rule $100(3)$ of the Rules of the court is produced later in this ruling but that sub-

relied on Abdulla's case (suppay) and Bitaliana $\frac{N}{2}$ Kananura (1577) HCB 34 for the view sold but that the proceeds of sale had not been accounted for by the applicant. Mr. Kihika been made and that three vehicles belonging to the respondents had been attached and referred to the affidavit of Mrs. Kata where Mrs. Kata indicated that some payments had acknowledged in paragraph 6 of Mwebembesi's supplementary affidavit. Mr. Kihika false because his client has so far paid Shs.30,463,000/= which amount had been contending that the information contained there to the effect that no costs had been paid is paragraph 19 of Mwebembezi's affidavit and ground (d) in the notice of motion counsel, paragraph $17(1)$ to (iii) (c) of Mwebembezi's affidavit is about. Counsel attacked before the court but not for what he called extraneous matters which, according to 100(3) Learned counsel argued that security for costs can be given only for matters African Court of Appeal Rules was considered. That rule is similar to the present Rule Counsel cited N. M. Abdulla vs. R. Patel (1962) EA 447 where Rule 60 of the 1954 East of the respondents is to simply show cause why relief should not be granted. Learned the burden to prove that further security should be given. Mr. Kihika argues that the duty Both counsel in this application agree that in this application the applicant bears

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account certain relevant matters when it decided not to grant extension of time. challenging the decision of the Court of Appeal because that court failed to take into

were attached, were wrecks, attracting no value. Mr. Kihika. The supplementary affidavit also explained how the three vehicles, which sworn on 7/7/2000 (especially paragraph 6 thereof) explains the payments referred to by $\lambda=Mr.$ Babigumira pointed out that the supplementary affidavit by Mwebembezi $\lambda=0.30\,\mathrm{m}^2$ execution proceedings, which sprung from the original civil suit. On payment of he argued that all the matters raised by the application are relevant as they arise from Court and in the Court of Appeal were filed by the respondents. On extraneous matters, motion refers to the harpharzad and reckless manner in which proceedings in the High reply to the issues raised by Mr. Kihika. He explained that ground (d) in the notice of Initially, Mr. Babigumira made written submissions. I granted him leave to orally

which I should grant an order for further security for costs as prayed for. study apparently avoiding arrest warrants issued by the courts below, this is a case in $\mathcal{E}$ have changed and the second respondent is outside Uganda on an indefinite course of shares of the first respondent have been sold and have changed hands, and its directors opposition like a party to the proceedings. Learned counsel also argued that because the director of, nor a shareholder in, the first respondent. So she can not swear an affidavit in not be relied on because she is merely an employee of the first respondent; but is neither a Mr. Babigumira contended that the affidavit of Mrs. Kata is irrelevant and should

I will first dispose of the relevancy of the affidavit sworn by Mrs Kata.

equipment in office. No value was placed on such furniture and equipment. cross-examination that the respondents' assets now consist only of furniture and of the current directors and or the shareholders of the first respondent. She testified under respondent. She does not appear to know or could not remember the entire membership she agreed that she swore the affidavit as an officer but not as director of the first When Mr. Babigumira crossed-examined Mrs. Kata on her affidavit of 6/7/2000,

applicant. as soon as practicable, serve a copy or copies on the τιιε 46 παι λοαθε οπε οτ πιοτε αββίααντις τη τερίγ απα shall, $\mathcal{L}(I)$ Any person served with a notice of motion under Surbrules (1) and (2) of Rule 47 of the Rules of the Court read as follows:-

or more supplementary affidavits." a judge or with the consent of the applicant, lodge one Any person referred to in Subrule(1) may, with the leave of $(z)$

is helpful. statement by the judge and in absence of the full ruling, I do not think that Kaingana case facts he knows about or on information he receives and believes. In view of this judge also stated, correctly, that a person is competent to swear an affidavit on matters or Kaingana the applicant to show that he had been authorised to act for her. The learned affidavit in a representative capacity, there was no authority given to him by Joy on Order 5 Rule 2 of our CP Rules and held that although the deponent swore the husband of the applicant is not reproduced. The judge who heard the application relied Kainganga case, whose report is in a digest form, the affidavit of Mr. Kaingana, the a copy of Kamoti's affidavit, I cannot say that Masaba case is helpful. Similarly in the The learned Chief Justice did not give authority for his views. However in the absence of "in corroboration of the affidavit sworn to by the applicant as the one directly affected". application. But the learned Chief Justice would have accepted the affidavit if it had been Sir Udo Udoma, CJ, rejected the affidavit because Kamoti was not a party to the is not stated in the judgment, which says that Kamoti was a stranger to the proceedings. had been made by an individual (Masaba) and his relationship with the deponent Kamoti sworn not by Masaba himself but by a stranger named Danieri Kamoti. The application the Massba case, which was an application by notice of motion supported by an affidavit, (1967) EA488 and Joy Kaingana per John Kaingana vs. Dabo Boubon (1986) HCB. 59. In sworn by a party. Mr. Babigumira supplied to me the cases of Masaba Vs Republic It does not seem to me that these provisions prohibit lodging of affidavit not

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refused. tacts of each case must be considered judicially before such an order can be made or

Jussimi 80 Det

unlikely to pay the costs awarded or to be awarded or both. that there are yet more costs to be awarded to the applicant and that the respondents are claim by the applicant that taxed costs have not been paid or perhaps not paid in full and second is the adequacy of the security for costs already given. This latter is based on the first ansing from grounds (a) and (b) is the probability of success of the appeal and the There are three points raised in grounds (a) to (d) of the notice of motion. The

Rule $42(1)$ refers to a person having knowledge of the facts. misleading. A particular advocate should be mentioned. Besides it should be noted that & Co. Advocates........ I think that this reference to the whole firm is bad and on stating in her affidavit that "I am reliably informed by my advocates Byenkya, Kihika is a factor to be born in mind together with the other factors. I notice that Mrs. Kata keeps detailed merits of the appeal. But I think that the probability of the success of the appeal to the extent that I am now not hearing the appeal and so I am not required to consider the contains falsehoods. I have dealt with falsehood. On merits, I agree with learned counsel I should not go into the details of the merits of the appeal. He argues that even ground (d) memorandum of appeal were filed. Learned Counsel further contended that at this stage, Instead he contended that in her affidavit, Mrs. Kata has sworn that a notice of appeal and of success of the pending appeal. Mr. Kihika did not directly challenge these arguments. set aside by the full Court of Appeal. Therefore, says Mr. Babigumira, there is no chance Justice allowed the respondents to appeal against the whole judgment, was subsequently in support. Secondly, he says that the order of a single Justice of Appeal by which the that there is no probability of success of the appeal on US\$ 211,200. He cited authorities and the Court of Appeal and which were dismissed. Mr. Babigumira's view therefore is amount. He referred to various applications, which were filed and argued in High Court admission of liability by respondents and that initially there was no appeal against that Court a preliminary decree for US\$211,200 was entered for the applicant on the of the appeal, Mr. Babigumira has raised two arguments. He has argued that in the High On the first point, namely whether there is or there is not a probability of success

with costs by a single Judge. Judgment Decree of the High Court but both were dismissed For extension of time within which to Appeal against the

out of time, which gave rise to these proceedings. of Appeal Misc. Application No.1440f 1998 for yet leave to appeal dismissal of the 2 applications, the respondents filed in the Court IAHT instead of making reference to a full bench against the

Execution which powers he did not have. Execution and misled a new Deputy Registrar to stay Counsel for the Applicants wrongfully applied for Stay of the 2nd respondent. At the hearing of the Notice to show Cause, we applied to the High Court for a warrant of arrest against deposited in Court and the 2nd respondent's Mercedes Benz, TAHT after failing to attach the land Title that had been

the illegal Order of the Deputy Registrar. TAHT we had to appeal to a Judge of High Court to set aside $II$

dismissed with costs. The High Court, all of them happarard and reckless which were TAAT thereafter, the applicants made several applications for $ZI$

the respondents still went abead to refer to a single Judge the σιλωτικ εξιησωμική της κεδουσφως εισδδρικό στο συνακική της της πρωτής της που που που που που που το που το π claimed that it belonged to a different person and we reached a Motor Vehicle Registration number 363 UEE but when it was of striking off the Notice of Appeal and the Appeal. We attached to recover some of the costs in the Court of Appeal arising out THAT in the meantime, we initiated Execution of Proceedings $(i) \in I$

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$.01$ full Bench appears at pages 47-58 of the Record of Appeal". of the Court of Appeal Rules which are very clear. The Ruling of a application of Section 70 of civil Procedure Act and Rule 54

Civil Reference No. 55 of 1999 in favour of the applicants. relevant to an application for extension of time when deciding the Justices of Appeal addressed their minds to matters not believe that we indeed have good chances of success on appeal as Advocates have reliably informed me, which information I verify chance of success, our advocates M/s Byenkya, Kihika & Co. Supreme Court Civil Appeal No. 2 of 2000 has not the slightest That whereas it is averred in paragraph 16 of the affidavit that -: SWOIIOT 2R In reply Mrs. Kata stated in paragraph 6 and 10 of her affidavit

extension of time." by failing to consider matters relevant in granting an order for the learned Justices of the Court of Appeal erred in law and fact Court in Civil Appeal No. 2 of 2000 arising out of that (six) in any case, the issues to be determined before the Supreme That I am further reliably informed by our advocates that

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mill succeed. the said amount of US\$ 211,200 was set aside and makes it improbable that the appeal single lustice of Appeal allowing the respondents to appeal out of time which included Kihaka's submissions do not dispute the assertion by Mr Babigumira that the order of a applicant and that that decree remains unsatisfied. Again Mrs. Kata's affidavit and Mr. do not dispute the claim that a preliminary decree for US\$211,200 was given to the in not a lawyer. Paragraphs 6 and 10 of her affidavit and the submissions of Mr. Kihika I notice that the formulation of the above paragraph (10) is confusing. Mrs. Kata

succeed. various causes in the courts below has not been denied. So these two grounds must issue raised by grounds (c) and (d) which is that more costs arose out of the institution of Appeal, the applicant will get costs perhaps not as much as counsel has estimated. The Court and there remains only the issue of taxation, there is no doubt that in the Court of is also true in another matter in the Court of Appeal. But since his clients worn in that costs and if costs are awarded, the taxing officer decides the amount to be awarded. This respect of the appeal pending in this court since the court has discretion about awarding

## Ground (e) to (f) were formulated as follows:-

- intention/reluctancy not to pay the Decretal sum and the taxed and allowed costs. The respondents have exhibited fraudulent conduct that points to their deliberate $(\epsilon)$ - from which costs can be realised. The Respondents have demonstrated by their conduct that they have no assets $\left( \mathbf{J}\right)$ - meet the past costs and the costs of the Appeal. That the Statutory Security for costs deposited in Court is too inadequate as to $(S)$ - That the Application has been filed without any delay. $(y)$

weeks or such period as the Honourable Court deems proper and just. ow1 nihiw----------------------------------exercise it's discretion and order the respondents to deposit further security for That in the circumstances of this case, it is just and proper for this Court to $(i)$

pertinent. Mr. Mwebembezi in his affidavit of $4^{\rm th}$ May $2000.$ The following paragraphs in $19$ are In his written and oral submissions Mr. Babigumira amplified matters sworn to by

THAT as of now, following Bills of Costs in the High Court have been $(i) \quad LI$

| | base havet need even stool to allig oniwollof edit won to as TAHT | $(II)$ | |----------------------------------------|--------------------------------------------------------------------------|--------------| | | $=$ /785' $\tau$ LS' $L\tau$ ------------------------------------ | | | $=$ /000 + 95 -7 | Civil Application No.937 of 1999---------------------------------- | $(1)$ | | $=$ /000'SE8 | Civil Application No.806 of 1998----------------------------------- | $(\epsilon)$ | | $=$ /005'608 | Civil Application No.733 of 1998----------------------------------- | $(p)$ | | $=$ /000'80L | Civil Appeal No. 230 of 1999---------------------------------- | $(c)$ | | $=$ /000'8Et | Civil Application No.1006 of 1998----------------------------------- | $(q)$ | | | Civil suit No.738 of 1995----------------------------------- | $(B)$ | | | taxed and allowed as per attached Certificates of Taxation marked 11-16. | |

| | Civil Reference/Appeal No. 11 of 1998----------------------------------- | $(g)$ | |----------|--------------------------------------------------------------------------|----------------------| | | marked K1-K3. | | | noitexeT | allowed in the Court of Appeal as per attached Certificates of | | | | THAT as of now, the following Bills of Costs have been taxed and | $\left( \Pi \right)$ |

| (a) CIVIL Keterence/Appeal No. I1 of 1988----------------------------------- | | |------------------------------------------------------------------------------|--|

| | Civil Application No.6 of 1998----------------------------------- | | |--|-------------------------------------------------------------------|--| |--|-------------------------------------------------------------------|--|

| $=$ /000'Z********************************** | | |----------------------------------------------------------------------------|--| | (c) Civil Reference/Appeal No.55 of 1999---------------------------------- | |

pue The following Bills of Costs are pending Taxation in the Court of Appeal $(iii)$

marked L1-L3. photocopies of the Bills of Costs filed in Court are herewith attached and

- Civil Appeal/Reference No.34 of 1998---- $(g)$ - Civil Application No.71 of 1999--------- $(q)$ - Civil Application No.44 of 1998----------- $(c)$ - giving rise to Civil Appeal No.2 of 2000. leave to appeal out of time which Order has been set aside by a full bench Appeal but this Appeal was filed upon an Order of a single Judge granting That there is Civil Appeal No. 44 of 1999 still pending in the Court of $($ ii $)$

Courts. haphazard/reckless applications the respondents were making to the the High Court and Court of Appeal arising out of the numerous run/hiding because of the several warrants of arrest issued against him by THAT since July 1999, the 2nd respondent Henry Kawalya is on the $(1)$

which can be sold and the costs realized. and the $1^\ensuremath{\mathrm{a}}$ respondent according to the conduct of the respondents has no assets has no slightest probability of success, the 2nd respondent will continue in hiding THAT if the respondents lose Supreme Court Civil Appeal No. 2 of 2000 which $(II)$

heard. Court Civil Appeal No. 2 of 2000 before their Appeal can be Ug. Shs. $400,000$ and the costs yet to be incurred in Supreme already far in excess of the Statutory security for costs of deposit further security for costs for the past costs which are very reluctant to pay Decretal sum and taxed costs be ordered to ing to their company or Henry Kawalya himself and also seem seem to have no assets according to their conduct either belong-TAHT the ends of Justice required that the respondents who

respondents have been reluctant to pay the taxed costs is therefore false. as annexture 'B'. The statement by Mr. Mwebembezi in paragraph 18 that the Advocates indicating the dates plus copies of the receipts are collectively attached summary of the amounts paid to counsel for the applicants Babigumira & $Co$ She.30,463,000/= between the dates of $5^{th}$ October 1998 and $13^{th}$ June 2000. A omitted to depose to the fact that the respondents have paid a total of the bills of costs allowed and taxed, totalling Shs.55,016,582 Mr. Mwebembezi That whereas paragraph 17 of the affidavit in support of the application sets out Mrs. Kata swore an affidavit in reply. Paragraphs 7 to 14 state as follows:-

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- and Dyna Truck UBJ 920 for amounts that we do not yet know. attached and sold Motor vehicles Toyota Corolla UAS 645, Dyna Truck UAN 775 That in addition to the above mentioned monies already paid, the applicant - already paid the major bulk of the costs. not just that respondent do pay security for past costs as the respondents have That contrary to what is averred in paragraph 19 of the affidavit in support, it is $\cdot$ 6 - matters relevant in granting an order for extension of time. learned Justices of the Court of Appeal erred in law and fact by failing to consider of Civil Reference No.55 of 1999 inter alia erred in fact and in law that the be determined before the Supreme Court in Civil Appeal No.2 of 2000 arising out That I am further reliably informed by our advocates that in any case, the issues to $102$ - pending appeal. That is to say bills of costs arising out of: enumerated in paragraph 17 of the affidavit in support, are not relevant to the That I am further reliably informed by our advocates that the past bills of costs $\cdot$ II - s) Civil Suit No. 738 of 19995

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- p) Civil Application No. 1006 of 1998 - c) Civil Appeal No. 230 of 1999 - d) Civil Appeal No. 733 of 19998 - e) Civil Application No. 806 of 1998 - the Civil Application No. 937 of 1999 - 3) Civil Reference No. 11 of 1998 - p) Civil Application No. 6 of 1998 - of time are likely to be no more than $Shs.2,000,000$ =. appeal which arise from an interlocutory matter, i.e., an application for extension That I am further reliably informed by my advocates that the costs of the pending $ZI$

"SJ9SSB That it is not true as is stated in paragraph 19 that the Respondents do not have $13$

.iivabiffa As stated earlier in this ruling, Mrs. Kata was cross-examined on part of her

that a substantial portion of past costs remain unpaid. substantial properties, which could be sold to realise the costs. It is also evident not know. But certainly this reveals a lot namely that the respondents do not have other properties because of the fear that the decree holder could attach them I do furniture. Whether this revelation was deliberate in that she did not want to reveal The only assets mentioned by Mrs. Kata during the cross-examination were office

which the respondents have is office furniture appears to support this last point. realise the costs. Clearly the oral restimony or reserved the costs. Clearly according to the costs. prison and that the respondents have no assets from which the applicant can country to avoid - committing him to costs through committing him to effect not dependable; that the second approach has deliberately gone out of the respondents have failed to pay past costs and that the test of Iga's land is in Mr. Babigumira stressed that what is contained in Mwebembezi's affidentiation.

respondents to deposit Shs. $150,000,000$ as further security for costs. Mr. Babigumira had proposed that I should grant the application and order the

the relevance of claims set out in paragraph $17(i)$ and $17(ii)(c)$ of Mwebembeza's related thereto) for purposes of asking for further security for costs. He disputes extraneous matters (i.e. causes from High Court and Court of Appeal and costs Supreme Court. He contended that in this application the applicant brought in (Supra) for the view that security for costs must relate only to matters before the Mr. Kihika relied on Rule 100(3) of this Court and on the authority of Abudalla

affidavit and contends that his clients have paid past costs. affidavit. He referred to payment of Shs.30,463,000/= stated in para 7 of Kata's

apparently with difficulty. Shs.30,463,000/= stretched over the period $5^{th}$ October 1995 to $13^{th}$ June, 1999 I accept that some but not all past costs have been paid. Payments of

made. At page 450F the East African Court of Appeal in that case observed thatproposition that no security for costs for matters dealt with by the lower courts can be Contrary to Mr. Kihika's contention, Abdulla case is not authority for his

appear redundant. costs relating to the matters in question in the appeal) of the rule unpaid costs in the court below the concluding words (i.e. past If the intention was not to include power to order security for $\mathcal{L}$

οι, in exceptional cases, directly". normally be in question in the appeal either consequentially COSLS VMVKDED IN THE COURT BELOW would also on pub (way) fo amos shuo square du square of them and the The matters in question in the appeal must be the matters in

awarded in the courts below relating to the litigation now the subject of appeal to this payment of past costs relating to the matters in question in the appeal" refer to costs 100(3), I agree with the opinion in Abdalla case that the words "security be given for Abdulla case and the present application. Moreover having regard to the whole of Rule the application for the security. These matters clearly show a distinction between pending before the Court of Appeal and (iii) there had been substantial delay in making that case namely that a novel and important point of law was in issue in the appeal had been regularly paying for more than a year, and (ii) because of the circumstances of to pay the costs in equal monthly instabuents of Kenya shs100/= which the respondent because (i) there was an existing order made by the lower court ordering the respondent Indeed in Abdulla's case the East African Court of Appeal dismissed the application

court.

Be it noted that in Abulla case the respondent was paying the instalments

conduct of respondents cannot help in these matters. of courts of this country and appears to have eluded warrants of arrest for him. The some of the past costs. That the second respondent is temporarily out of the jurisdiction evidence that a number of coercive procedures have been used to realise payment of regularly in obedience to an order of the court. In the present application there is

from the date hereof. $\frac{1}{2}$ days $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{$ the circumstances of the case I order that the respondents must each provide security in happened in this matter I will myself do the best I can by fixing a figure. Considering all However I take note of the fact there are unpaid past costs. But having seen what has made by the registrar. This would involve attendance to the registrar by the two sides. assessment of probable costs for which security is to be provided should normally be this application with costs to the applicant. In cases like this one, my general view is that I am conscious of the need for the respondents to pursue their rights in our courts. I allow case where I should make an order for provision of further security for costs. In doing so realised. Considering all the factors presented in this case, I am satisfied that this is a fit The respondents do not appear to own substantial property out of which costs can be

Date this JO VED - 10 VED

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