Said Adam Kazungu v Kibokoni Properties Ltd [2015] KEELC 647 (KLR)
The bottom line
#A Kenyan court ordered a land plaintiff to deposit Kshs.800,000 as security for the defendant's legal costs, or lose the case entirely.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant established a bona fide defence for purposes of security for costs
The court held the Defendant had a bona fide defence because ownership of the suit property had been decided in its favour in HCCC No. 2 of 2007 and HCCC No. 9 of 2012, notwithstanding that the Plaintiff was not party to those suits, and the Plaintiff had never extracted or served Summons to Enter Appearance.
The court relied on its earlier ruling of 31st October 2012 staying this suit as an abuse of process and a collateral attack, and on the joint judgment of 25th July 2014 in the consolidated suits which found ownership in favour of the Defendant. Combined with the Plaintiff's failure to extract and serve summons despite the stay, this satisfied the Shah v Shah test that the defendant has shown a bona fide defence, justifying an order for security for costs.
Valuation of the property for fixing the quantum of security
In the absence of any valuation report from the Plaintiff, the court adopted the Defendant's valuation report as the true value of the land for purposes of the application, and fixed security at Kshs.800,000 rather than the Kshs.1,500,000 sought.
The Defendant annexed a valuation report to its affidavit; the Plaintiff annexed none, so the court had no independent basis to dispute the pleaded value. The court exercised its discretion to fix a sum it considered just, awarding less than the Kshs.1,500,000 claimed by the Defendant but more than nothing, and ordered dismissal with costs if the deposit is not made within 30 days.
Legal principles established
#- The discretion to order security for costs is unfettered by statutory criteria and must be exercised judicially
- The test on an application for security for costs is whether the defendant has shown a bona fide defence, not whether the plaintiff has a prima facie case
- Residence outside the jurisdiction is not per se a ground for ordering security; the court considers whether enforcement of a costs judgment would be difficult
Court orders
#- 1.The Plaintiff to deposit in court Kshs.800,000 being security for the Defendant's costs within 30 days failing which the suit shall stand dismissed with costs
- 2.The Plaintiff to pay to the Defendant the costs of the Application
- Jurisdiction invoked
- Order 26 Rules 1, 2 and 5 of the Civil Procedure Rules (security for costs)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Said Adam Kazungu v Kibokoni Properties Ltd [2015] KEELC 647 (KLR)", Case Analysis (2015). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/647/eng@2015-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.