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Court of AppealPartially AllowedCivil Appeal 302 of 2004· [2010] KECA 211 (KLR)

Magiri Nguthari v Gideon Kimathi M’nguthari

Court of Appeal of Kenya
24 June 2010
1,409 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The respondent, defendant in High Court Civil Suit No. 100 of 1997 at Meru, applied under section 27 of the Civil Procedure Code and Order XXV Rules 1 and 7 of the Civil Procedure Rules for an order that the appellant plaintiff deposit security for costs, asserting that the suit was frivolous and that the plaintiff was transferring his property to defeat any decree. The Commissioner of Assize (the late G.A. Omwitsa) ordered the plaintiff to deposit Kshs.80,000 within thirty days, in default of which the suit would stand dismissed. The plaintiff appealed to the Court of Appeal at Nyeri, contending that the Commissioner had effectively determined the whole suit on an interlocutory application and misdirected himself on the principles governing security for costs. The Court of Appeal held that the only issue was security for costs and that the parties' forays into the merits were irrelevant. Relying on Order XXV and endorsing Shah v. Shah [1982] KLR 95, it reaffirmed that the power is discretionary and to be exercised reasonably and judicially. Because the appellant owned property within the jurisdiction and the dispute was between family members over a road of access, ordering security could be oppressive; a defendant who believes a claim frivolous should seek striking out of the plaint. The Court allowed the appeal, set aside the ruling, directed the suit to proceed to hearing, and ordered each party to bear his own costs of the appeal and of the application in the superior court.

Key legal issues

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01

Proper exercise of discretion on security for costs

Holding

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.

Reasoning

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.

p. 3
02

Irrelevance of the merits of the main suit to a security-for-costs appeal

Holding

The parties' submissions on the merits of the underlying land dispute were not relevant to the appeal, which concerned only security for costs.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Appeal allowed
  2. 2.Ruling of the Commissioner of Assize dated 18th August 1999 set aside
  3. 3.Suit in the superior court to proceed for hearing
  4. 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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.