Wakilii

Prinsloo Kiminta v Kagwera & Anor (Miscellaneous Application No. 0065 of 2018)

High Court · [2018] UGHCFD 8 · 2018 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. 44 of 2017
Decision
Application dismissed; underlying suit to proceed to hearing on merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court declined to order security for costs against the respondents. The court held that the underlying suit disclosed a prima facie case involving serious allegations of fraud, including a document allegedly signed by a deceased person after his death. The court considered the merit of both parties' cases based on pleadings and affidavits, and concluded that ordering security for costs would stifle the respondents' suit and deny access to justice. The matter would proceed to hearing on the merits.

Outcome

Application dismissed; underlying suit to proceed to hearing on merits

Facts

The applicants, executors of the Estate of the late John Charles Palgrave Simpson, sought an order requiring the respondents to furnish security for costs of UGX 130,000,000 in Civil Suit No. 44 of 2017. The underlying suit alleged fraudulent and negligent transfer of shares and non-remittance of proceeds. The applicants contended the suit was frivolous and that the second respondent, residing in the UK for ten years, had no assets in Uganda to satisfy a costs order. The respondents opposed, arguing the application was brought in bad faith to frustrate justice. They alleged the suit had a high likelihood of success as it was based on fraudulent transfer of shares, including a document (Annexture D) purportedly signed by the late Charles John Lockhart Smith on 1 February 2003, though he died on 20 May 2002. The court noted this raised a crucial issue requiring investigation at trial.

Issues

  1. Whether the respondents should be ordered to furnish security for costs in Civil Suit No. 44 of 2017.
  2. Whether the underlying suit is frivolous or has a low likelihood of success justifying an order for security for costs.
  3. Whether the second respondent, residing abroad with no assets in Uganda, poses a risk regarding costs recovery.

Orders

  • Application for security for costs dismissed.
  • Case to be heard on the merits.
  • Case to be fast-tracked.
  • Costs to be determined in the main judgment.

Rules and key headnotes

Civil Procedure — Security for Costs — Criteria for Grant — Prima Facie Case
In determining an application for security for costs, the court must consider the prima facie case of both the plaintiff and the defendant based on the pleadings, affidavits filed in support or opposition, and any other material available at that stage, since a trial will not have taken place.
Civil Procedure — Security for Costs — Refusal — Prima Facie Case Established
Where a suit discloses a prima facie case involving serious allegations of fraud that require investigation at trial, the court will decline to order security for costs so as not to stifle the plaintiff's suit and deny access to justice, notwithstanding concerns about the plaintiff's ability to satisfy a costs order.
Civil Procedure — Access to Justice — Constitutional Right — Security for Costs
The court must administer substantive justice as stipulated under the Constitution and avoid stifling a litigant's suit through an order for security for costs where the underlying claim has merit warranting a hearing on the merits.

Legislation cited (3)

Cases cited (1)

  • G.M. Combined (U) Ltd v A.K. Detergents (U) Ltd (Supreme Court Civil Appeal No. 34 of 1995)

Full judgment

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

Prinsloo Kiminta v Kagwera & Anor (Miscellaneous Application No. 0065 of 2018) [2018] UGHCFD 8 (19 December 2018)
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.