Wakilii

Shrikesh v Eleshkumar (Miscellaneous Application 197 of 2023)

High Court · [2024] UGHCFD 66 · 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 HCCS No. 416 of 2022
Decision
Application for security for costs dismissed; underlying civil suit HCCS No. 416 of 2022 to proceed.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court dismissed the application for security for costs, holding that the underlying civil suit was not frivolous or vexatious. While limitation does not bar claims for fraudulent breach of trust by a trustee under section 19(1)(a) of the Limitation Act, and while res judicata does not apply to a suit dismissed for want of prosecution, the court found insufficient grounds to grant security for costs. The applicant failed to establish that the respondent would be unable to pay costs, as execution procedures exist under section 38 of the Civil Procedure Act to recover costs from a judgment debtor.

Outcome

Application for security for costs dismissed; underlying civil suit HCCS No. 416 of 2022 to proceed.

Facts

The applicant and respondent are brothers, sons of the late Chandrakant Shamjibhai Gheewala who died testate in Kenya in 1984. Probate was granted to their mother in Kenya and resealed in Uganda in 2007. The respondent instituted HCCS No. 416 of 2022 against the applicant, their mother as executrix, and Unique Holdings Ltd for fraudulent breach of trust and illegal transfer of shares belonging to the estate. The applicant applied for security for costs under Order 26 rule 3 CPR, arguing that the underlying suit was frivolous, vexatious, statute-barred, beyond Uganda's jurisdiction, and that the respondent had previously failed to prosecute a similar suit (HCCS No. 20 of 2019) which was dismissed for want of prosecution. The applicant also claimed the respondent had a history of not discharging debts and would be unable to pay costs if the suit failed.

Issues

  1. Whether there are sufficient grounds for an application for grant of security for costs to the applicant against the respondent.
  2. Whether the applicant is being put to undue expense by defending a frivolous and vexatious suit.
  3. Whether the applicant has a good defense to the underlying suit which is likely to succeed.
  4. Whether the respondent will be unable to pay costs to the applicant in case judgment in the main suit is passed against him.

Orders

  • Application dismissed.
  • Each party to bear their own costs.

Rules and key headnotes

Security for Costs — Grounds for Grant — Discretionary Power
The court's power to grant security for costs under Order 26 rule 1 of the Civil Procedure Rules is purely discretionary and must be exercised only in special circumstances where it is just to do so.
Security for Costs — Burden of Proof — Considerations
An applicant for security for costs bears the burden to satisfy the court that the circumstances justify making the order, and the major consideration is whether the plaintiff's claim is bona fide and has a reasonably good prospect of success, not whether it is frivolous or vexatious.
Limitation — Fraudulent Breach of Trust by Trustee
Section 19(1)(a) of the Limitation Act saves an action by a beneficiary under a trust in respect of any fraudulent breach of trust in which the trustee was a party, and such a cause of action cannot be affected by statutory limitation.
Res Judicata — Dismissal for Want of Prosecution
A suit that has been dismissed for want of prosecution cannot be said to be affected by the doctrine of res judicata because the matter has not been adjudicated upon on its merits.
Security for Costs — Inability to Pay — Enforcement Options
Where a judgment debtor has assets or where enforcement procedures exist under section 38 of the Civil Procedure Act to execute against a judgment creditor, the defendant's fears of non-recovery of costs stand no ground and do not justify an order for security for costs.

Legislation cited (9)

Cases cited (14)

  • Helen Aloyo Lugone v Roy Ogwok Lugone (Originating Summons No. 10 of 2013)
  • GM Combined (U) Ltd v AK Detergents (U) Ltd (Supreme Court Civil Appeal No. 231 of 1994)
  • Goodman Agencies Ltd v Hasa Agencies Ltd (Civil Application No. 1 of 2011)
  • Lalji Gangji v Nathoo Vassanjee (1960) EA 315
  • Fabiana Namboro & Waburo v Henry Kaala [1975] HCB 315
  • GM Combined (U) Ltd v AK Detergents (U) Ltd (Supreme Court Civil Application No. 34 of 1995) [1999] 2 EA 94
  • R v Ajit Singh s/o Vir Singh [1957] EA 822
  • Ndungo Seti & 2 Others v Sekiziyivu Sammy Johnes (HCCS No. 286 of 2011)
  • Re Singapore Souvenir Industry (Pte) [1985-86] SLR(R) 161
  • Saul Kisiribombo v Tumwine & Others (HCCA No. 19 of 2018)
  • Baku Raphael Obudra & Another v Attorney General (SCCA No. 1 of 2005)
  • James Katabazi & 21 Others v Secretary General of the East African Society (Reference No. 1 of 2007)
  • Kamunye & Others v Pioneer General Assurance Society Ltd (1971) EA 263
  • Goodman Agencies (U) Ltd v AK Detergents (U) Ltd [1996] UGSC 11

Full judgment

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

Shrikesh v Eleshkumar (Miscellaneous Application 197 of 2023) [2024] UGHCFD 66 (9 September 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.