• Francis Obonyo
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Mere poverty of a plaintiff is not by itself a ground for ordering security for costs says Justice Godfrey Namundi

In the case of Galukande Kiganda Michael V Kibirigge George William & 2 Others. HC Family Division Misc Application No.261 Of 2018 Before: Justice Godfrey Namundi on 03-07-2020.

This was an Application by Chamber Summons under Section 98 of the Civil Procedure Act Cap 71, Order 26 Rules 1, 2 & 3 of the Civil Procedure Rules SI- 71-1seeking the following orders; the respondent/plaintiffs furnish security for costs and costs of the application be provided for.

The respondents in this application were plaintiffs in the main suit. The respondents were both of old age, i.e. 80 and 86 years with no known source of income and didn’t have property that could be attached for execution. Further, the 1st Respondent is a convict, and he was found guilty of forging letters of administration. He had also previously lost matters and failed to pay costs. Therefore it is unlikely that the respondents/plaintiffs would be in a position to pay the costs of the suit should be decided in favour of the applicant.

Furthermore, none of the defendants is a child of the deceased, therefore have no entitlements in the estate, which makes the suit frivolous and vexatious hence enhancing the need for security for costs. The Respondent, however, argued that the suit is not vexatious since it is about whether the deceased left a will. Whereas he is indeed a convict, he was just a victim of circumstances. The applicant and other beneficiaries benefited from the forged letters of administration as well. It’s therefore not true that the 1st Respondent ran to court. The 1st Respondent argued that he paid a considerable portion of the taxed costs of the cases and is willing to pay the balance of the expenses taxed as communicated to the applicant’s advocate. Copies of the receipts were attached as annexure “N”.
The issue for determination is whether the respondents should furnish security for costs.

Order 26 Rule 1 of the CPR provides as follows:-The court may if it deems fit order a plaintiff in any suit to give security for the payment of all costs incurred by any defendant.”

The following principles must be considered by the court while exercising the discretion to order for security for costs.

  • Whether the applicant is being put to undue expenses by defending a frivolous and vexatious suit;
  • That he has an excellent defence to the suit;
  • Only after these factors have been considered would factor-like inability to pay come into account?

Mere poverty of a plaintiff is not by itself a ground for ordering security for costs. If this were so, indigent litigants would be deterred from enforcing their legitimate rights through the legal process.
Oder JSC in G.M. Combined (U) Ltd v. A.K. Detergents (U) Ltd. C.A. No. 34 of 1995 considered the matter of security for costs extensively and citing among others Anthony Namboro (supra), concluded that;
In a nutshell, the court must consider the prima facie case of both the plaintiff and the defendant. Since a trial will not yet have taken place at this stage, an assessment of the merit of the respective cases of the parties can only be based on the pleadings, on the affidavits filed in support of or in opposition to the application for security for costs and any other material available at this stage.

The 1st Respondent is a convict found guilty of forging letters of administration of the estate in issue, and he has lost the following cases High Court of Uganda at Masaka Misc. Cause 023 of 2015 Kibirige George William vs Galukande Kiganda Michael & Anor and Misc. Appl No. 251,252 &253 of 2016 Kibirige George William vs Galukande Kiganda Michael & Anor. That all those make the suit frivolous and vexatious.
Whereas the Respondent has receipts proving payment of costs he has failed to make good the payments in 3 years and keeps making promises. The chances are high that he will not be able to pay costs of the main suit should it be in favour of the applicant/defendant.
The court accordingly awarded the following orders;

  • The 1st Respondent is to deposit in this Court Shs 50,000,000/ as security for costs, within 30 days of this order.
  • Should he fail to comply with this order, the suit will be dismissed accordingly.
  • Each party will meet the costs of this application.