Wakilii

Bukaalamye & Another v Sensuwa (Miscellaneous Application 3868 of 2023)

High Court · [2024] UGHCLD 93 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for security for costs arising from civil suit for fraud
Decision
Application for security for costs dismissed; underlying fraud suit to proceed to trial

Observed later treatment

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Holding

An application for security for costs requires proof that the applicant is defending a frivolous and vexatious suit, has a good defence likely to succeed, and only then does inability to pay costs become relevant. Where the underlying suit raises fraud allegations that turn on contested facts and limitation periods tied to when fraud was discovered, and where the applicant provides no evidence of the respondent's inability to pay costs beyond speculation, the application for security for costs must fail.

Outcome

Application for security for costs dismissed; underlying fraud suit to proceed to trial

Facts

The respondent, as administrator of the late Yakobo Sekubwa Nsanja's estate, instituted Civil Suit No. 1320 of 2023 alleging fraud in the transfer of land comprised in Kibuga Block 7 Plots 340 and 321 at Mengo to the late Lugendo John, whose estate the applicants now administer. The certificate of title showed transfer from two executors of Nsanja's estate, though the respondent contended there were three executors. The applicants claimed they acquired the land through a sale but produced no transfer instruments. The applicants sought security for costs, claiming the suit was frivolous, vexatious, and time-barred, and that the respondent, a man over 70 years old, had no known income or property from which costs could be recovered. The respondent countered that he discovered the fraud in 2017 after obtaining letters of administration, making the suit timely under Section 25 of the Limitation Act.

Issues

  1. Whether there are sufficient grounds for the grant of an application for security for costs to the applicants against the respondent?
  2. What remedies are available to the parties?

Orders

  • Application dismissed.
  • Costs of the application to be in the main cause.

Rules and key headnotes

Security for Costs — Applicable Principles
In determining an application for security for costs, the court must consider whether the applicant is being put to undue expenses by defending a frivolous and vexatious suit, whether the applicant has a good defence likely to succeed, and only after these factors have been considered should inability to pay costs be taken into account.
Security for Costs — Assessment Without Touching Merits
Where a trial has not yet taken place, the court's assessment of the merit of the respective cases for purposes of a security for costs application can only be based on the pleadings, the affidavits filed in support of or in opposition to the application, and any other material available at that stage, taking care not to determine the merits of the main suit.
Frivolous and Vexatious Suits — Definition
A frivolous and vexatious suit is one that is paltry, trumpery, not worthy of serious attention, and having no reasonable ground or purpose.
Security for Costs — Limitation and Fraud
Where the underlying suit is premised on fraud and the limitation period under Section 25 of the Limitation Act runs from the time the party discovered the fraud, it is difficult to determine at an interlocutory stage whether the suit is frivolous and vexatious on limitation grounds without going into the merits of the main suit.
Security for Costs — Inability to Pay
Mere poverty of a plaintiff is not by itself a ground for ordering security for costs, as such an approach would deter poor litigants from enforcing their legitimate rights through the legal process. Lack of knowledge on the part of the applicant cannot amount to evidence of the respondent's inability to pay costs.

Legislation cited (4)

Cases cited (5)

  • Galukande Kiganda Michael v Kibirige George William and 2 Others (Miscellaneous Application No. 261 of 2018)
  • Anthony Namboro and Another v Henry Kaala [1975] HCB 315
  • G.M. Combined (U) Ltd v A.K. Detergents (U) Ltd (Supreme Court Civil Appeal No. 34 of 1995)
  • R v Ajit Singh s/o Vir Singh [1957] EA 822
  • Bank of Uganda v Joseph Nsereko & 2 Others (Civil Application No. 7 of 2002)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Bukaalamye_&_Another_v_Sensuwa_(Miscellaneous_Application_3868_of_2023)_[2024]_UGHCLD_93_(4_April_2024)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.