Magiri Nguthari v Gideon Kimathi M’nguthari
The bottom line
#Kenya's Court of Appeal ruled that family members with property in Kenya shouldn't be forced to deposit security for costs to pursue their lawsuits.
What this practically means
#Executive summary
#Key legal issues
#Proper exercise of discretion on security for costs
The order for security for costs was set aside because the appellant owned property within the jurisdiction and the dispute was between members of the same family, making an order for security potentially oppressive.
Order XXV of the Civil Procedure Rules empowers the court to order security for a defendant's costs. The Court endorsed Shah v Shah, confirming the discretion must be exercised reasonably and judicially. On the facts, the appellant had land within Kenya, so the general rule (security for plaintiffs resident outside the jurisdiction) did not apply. Given the family nature of the dispute, ordering security might be oppressive; the proper remedy for an allegedly frivolous claim is striking out the plaint, not forcing a litigant to pay security to pursue his claim.
Irrelevance of the merits of the main suit to a security-for-costs appeal
The parties' submissions on the merits of the underlying land dispute were not relevant to the appeal, which concerned only security for costs.
The Court framed the issue narrowly as relating to security for costs by the plaintiff. Counsel on both sides had gone into the merits of the respective cases in the superior court, which the Court held was not relevant. An appellate court reviewing a discretionary security-for-costs order considers the statutory criteria and the circumstances bearing on the order, not the underlying claim's merits.
Legal principles established
#- Security for costs is governed by Order XXV of the Civil Procedure Rules, and the power to order it is discretionary, to be exercised reasonably and judicially.
- Where the plaintiff has property within the jurisdiction, particularly in a family dispute, it is generally not a proper case for an order of security for costs; a defendant who considers a claim frivolous should apply to strike out the plaint instead.
Court orders
#- 1.Appeal allowed
- 2.Ruling of the Commissioner of Assize dated 18th August 1999 set aside
- 3.Suit in the superior court to proceed for hearing
- 4.Each party to pay his own costs of the appeal and the costs of the application in the superior court
- On appeal from
- High Court of Kenya at Meru
- H.C.C.C. No. 100 of 1997
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court under the Constitution and the Appellate Jurisdiction Act (appeal as of right from the ruling of the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kelvin Kigen Kieti v Kilifi County Public Sevice Boa & another Interested Party Owen Yaa Baya [2015] KEELRC 440 (KLR)[2015] KEELRC 440 (KLR)7 Oct 2015followed
Cite this brief
#Cite this brief
Caselaw, "Magiri Nguthari v Gideon Kimathi M’nguthari", Case Analysis (2010). Civil Appeal 302 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/211/eng@2010-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.