Kwame Kariuki & another v Mohamed Hassan Ali Alimohamed Janmohamed & 2 others [2015] KEELC 580 (KLR)
The bottom line
#Kenya's High Court refused to dismiss a suit over unpaid security for costs, but stripped the plaintiffs of their protective interim orders.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is liable for dismissal under Order 26 Rule 5 for failure to deposit security for costs
The Plaintiffs were in default of the order of 20th March 2014, having been required from 31st July 2014 (when their stay application was dismissed) to deposit Kshs 6,000,000 within 30 days, which they did not do; the suit was therefore prima facie liable to dismissal, but the court instead discharged the underlying interim and status quo orders
The court found that the stay of the 20th March 2014 order operated only between 9th April 2014 and 31st July 2014, after which the Plaintiffs had 30 days to deposit the security. No order from the Court of Appeal staying execution was exhibited. Non-compliance was thus established, making the suit liable to dismissal under Order 26 Rule 5. However, the court exercised discretion under section 3A to keep the suit alive given the interim arbitral award, while discharging the status quo orders whose purpose had lapsed.
Whether the status quo orders should continue pending arbitration
The status quo orders lapsed because the arbitration they were to pending had concluded with an interim award, and it would be inequitable for the Plaintiffs to enjoy their benefits without providing the ordered security
The interim orders granted on 14th November 2011 by Ougo J and confirmed by Kimondo J on 18th September 2012 were to obtain pending arbitration. That arbitration concluded with an interim award on 27th May 2014, so the orders had lapsed. Further, the Plaintiffs' unchallenged failure to provide the security for costs associated with those orders made continued enjoyment of them inequitable. The court therefore discharged them under section 3A.
Legal principles established
#- Where security for costs is not given within the time ordered and the plaintiff is not permitted to withdraw the suit, the court shall upon application dismiss the suit
- A plaintiff cannot continue enjoying the benefit of interim/status quo orders while refusing to provide security for costs as ordered
Court orders
#- 1.The interim orders granted on 14th November 2011 and the status quo orders granted on 18th September 2012 be and are hereby forthwith discharged pursuant to section 3A of the Civil Procedure Act
- 2.The prayer for dismissal of the suit is declined
- Jurisdiction invoked
- Sections 1A and 3A of the Civil Procedure Act; Order 26 Rule 5 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kwame Kariuki & another v Mohamed Hassan Ali Alimohamed Janmohamed & 2 others [2015] KEELC 580 (KLR)", Case Analysis (2015). Chamber Summons dated 8th December 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/580/eng@2015-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.