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Additional appeal security and access to justice after a failed hotel transaction — Nairobi Case and Document Guide

Decision analysed: Westmont Holdings SDN BHD v Central Bank of Kenya and 2 others — [2023] KESC 11 (KLR) — 17 February 2023

Court: Supreme Court of Kenya

The dispute

A failed hotel transaction generated a claim concerning a KES 185,000,000 deposit held by the bank. After the suit was dismissed, the Court of Appeal ordered KES 20,000,000 additional security as a condition for the appeal. The Supreme Court considered the certified security question, not the merits of deposit recovery.

What the Court decided

The Supreme Court allowed the appeal on the specific security issue, set aside the conditional order and remitted the substantive appeal to the Court of Appeal. Each party bore its own costs. Security for costs is not unconstitutional in every case, and deposit refund was not finally adjudicated.

What this decision does and does not establish

Constitution Articles 48, 50 and 159; Article 163(4)(b) certification; proportionate exercise of security discretion. The source discusses the historical Court of Appeal rules and nominal security. Current amounts and rule numbering must be verified before a new application.

Choose a document for the procedural task

Certified Petition of Appeal Against Disproportionate Additional Security

Complete the court, parties, appealed decision and service fields. Rule 39 requires concise facts, grounds, supporting arguments, relief and an annexure schedule in Form G. This core pleading must accompany the applicable record and fee under rule 38. Establish the Article 163(4) gateway and check notice, filing and service dates. A historical losing argument is not a recommended new ground. Do not attempt to reopen a decided case merely by using this specimen.

Company Affidavit Identifying Security Order Deposit and Untaxed Costs

This is an illustrative affidavit identifying existing records, not permission to add fresh appellate evidence. State the deponent’s authority, personal knowledge and source of information. Verify each exhibit and page reference. Obtain leave or directions where an additional affidavit is required; new evidence requires the applicable admission procedure. Complete the jurat before a competent Commissioner for Oaths. The public sample is unsworn and contains no exhibits. An affidavit is not legal submissions.

Grounds of Objection Defending an Application for Additional Appeal Security

Under the official Supreme Court Rules 2020, rule 42 permits grounds of objection, an affidavit, or both, ordinarily within fourteen days of service unless directed otherwise. Check current directions and actual service. Keep objections within the appealed issues; facts need admissible evidence. Different relief or a different ground for affirmance may need the applicable cross-appeal or notice procedure. A response is not an automatic permission to introduce new issues.

Appellant Submissions on Untaxed Costs and a Security Condition Blocking Hearing

Put evidence in the admitted record and identify page references for every material factual proposition. Submissions do not introduce evidence. Check the Court’s directions on filing, length, authorities and service. Address jurisdiction before merits, answer the opponent’s actual objection and state the requested disposition. If the source argument failed, explain why rather than describing it as a successful precedent.

Respondent Submissions Balancing Costs Recovery and Access to an Appeal

Answer the actual pleaded grounds and the Appellant’s authorities. Identify the record pages relied upon and any genuine limits of jurisdiction. An argument that failed in the source case remains marked historical. New affirmative relief may require a cross-appeal; do not obtain it by adding a prayer to submissions. Follow current filing, bundle and service directions.

Primary source and reconstruction

Read the original judgment: [2023] KESC 11 (KLR)

The complete judgment chapter was downloaded from the official Supreme Court law reports and checked for the background, competing positions and final orders.

These documents are newly drafted educational reconstructions, not original filed pleadings or matters handled by our team. The original decision may identify participants; the specimens replace identifying details with bracketed fields. Losing positions remain marked unsuccessful. An advocate must adapt jurisdiction, evidence, prayers and procedure to the actual case.