Wakilii

Kabogoza Dallaus and Another v Margaret Kasirye and Another (Miscellaneous Application 1126 of 2023)

High Court · [2023] UGHCLD 471 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Interlocutory application for security for costs arising from Civil Suit No. 287 of 2022
Decision
Application dismissed with costs in the cause

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application for security for costs dismissed. The court held that the applicants failed to prove the main suit was frivolous or vexatious, as the respondents established a prima facie case with serious issues requiring trial. The applicants did not discharge their burden of proving the respondents lacked capacity to pay costs, where the respondents demonstrated they held remaining acreage and resided with property in the area. Mere poverty is not grounds for ordering security for costs. Costs awarded in the cause.

Outcome

Application dismissed with costs in the cause

Facts

The applicants sought an order requiring the respondents to deposit UGX 200,000,000 as security for costs in the underlying land trespass suit (Civil Suit No. 287 of 2022) and related applications. The respondents, claiming to be beneficiaries of the estate of the late Pantaleo Lule who owned a kibanja measuring 8.82 acres at Kisubi, had sued for trespass. The applicants claimed that the lower part of the kibanja had been donated to John Baptist Kigozi, who sold 6.5 acres (ultimately distributed between the two applicants). The applicants contended they were incurring significant legal expenses defending what they characterised as a frivolous suit, and that the respondents lacked means to pay costs if unsuccessful. The respondents disputed all allegations and asserted they held remaining acreage (2.32 acres) and resided at Kakindu with property sufficient to meet any costs order.

Issues

  1. Whether the respondents should deposit in Court UGX 200,000,000 as security for costs in Civil Suit No. 287 of 2022 and all miscellaneous applications arising therefrom.
  2. Whether the applicants are being put to undue expenses by defending a frivolous and vexatious suit.
  3. Whether the applicants have a good defence to the suit.
  4. Whether the respondents are unable to pay costs by reason of lack of funds and/or property to satisfy the decree.

Orders

  • Application for security for costs dismissed.
  • Costs shall be in the cause.

Rules and key headnotes

Civil Procedure — Security for Costs — Conditions for Grant
Before ordering security for costs under Order 26 rule 1 of the Civil Procedure Rules, the court must first consider whether the applicant is being put to undue expenses by defending a frivolous and vexatious suit, and whether the applicant has a good defence to the suit likely to succeed. Only after these two elements have been established may the court consider the plaintiff's inability to pay costs.
Civil Procedure — Security for Costs — Frivolous and Vexatious Suit
A suit is frivolous if it lacks legal basis or merit and is not reasonably purposeful; it is vexatious if instituted maliciously and without good cause. Where a plaintiff establishes a prima facie case with serious issues requiring trial, the suit cannot be characterised as frivolous or vexatious merely because the defendant disputes the claim.
Civil Procedure — Security for Costs — Inability to Pay Costs — Burden of Proof
The burden of proving that a plaintiff lacks capacity to pay costs rests on the applicant for security for costs, in accordance with the principle affirmanti non neganti incumbit probatio. Mere poverty is not by itself grounds for ordering security for costs, as this would deter poor litigants from enforcing legitimate rights through the legal process.
Civil Procedure — Security for Costs — Assessment of Merit — Interlocutory Stage
At the interlocutory stage when an application for security for costs is heard, the court must assess the prima facie case of both plaintiff and defendant based on the pleadings, affidavits filed in support or opposition, and any other material available. The court is restrained from descending into the full merits of the case or dealing with issues requiring evidence and cross-examination, such as fraud or forgery.

Legislation cited (6)

Cases cited (7)

  • Namboro & Fabiana Waburo 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
  • Auto Garage v Motokov [1971] EA 514
  • Goodman Agencies (Supreme Court Civil Reference No. 1 of 2011)
  • Paul Nyamarere & 3 Others v Dison Okumu (Supreme Court Civil Appeal No. 35 of 2020)
  • Namboro & Fabiana Waburo v Henry Kaala (1975) HCB 315

Full judgment

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Kabogoza_Dallaus_and_Another_v_Margaret_Kasirye_and_Another_(Miscellaneous_Application_1126_of_2023)_[2023]_UGHCLD_471_(29_September_2023)
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.