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ELCDismissedELC No. 657 of 2013 (Nairobi) & ELC No. 612 of 2013 (Nairobi) - Notice of Motion dated 24th June 2014· [2015] KEELC 825 (KLR)

Friendrich Peitz & 2 others v Guy Spenser Elms & 3 others [2015] KEELC 825 (KLR)

Environment and Land Court
19 October 2015
1,657 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court refused to make the plaintiffs pay money upfront as a guarantee, ruling that suspicion alone cannot prove they couldn't afford to pay costs.

What this practically means

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Executive summary

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This judgment of the Environment and Land Court at Nairobi (L. Gacheru J) determines a Notice of Motion dated 24th June 2014 brought by the defendant (Guy Spenser Elms) in two consolidated suits, ELC No. 657 of 2013 and ELC No. 612 of 2013, both concerning parcels LR No. 2327/117 and LR No. 2327/10. The applicant, an advocate and executor of the estate of Roger Bryan Robson, sought an order that the plaintiffs deposit Kshs 15,000,000/= into a joint interest-earning account as security for the defendants' costs, and that the suits be dismissed if the security was not deposited. He argued that the 1st plaintiff in ELC 657 of 2013 resided outside Kenya and had only donated a limited power of attorney, that the search of LR No. 2327/10 dated 27th April 2006 showed Roger still registered as proprietor, and that projected costs exceeded Kshs 15,000,000/=. The plaintiffs opposed, contending the application was speculative, that the applicant had not taken out letters of administration, and that the ownership disputes were matters for trial. Applying Shah v. Shah and Cancer Investments Ltd. v. Sayani Investments Ltd., the court held that ordering security for costs is discretionary and requires evidence that the plaintiff would be unable to pay costs; mere apprehension is insufficient. Noting allegations of fraud and the emotive nature of land disputes, the court reserved ownership for the full hearing and dismissed the application with costs to the plaintiffs.

Key legal issues

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01

Test for ordering security for costs

Holding

The test is not whether the plaintiff has a prima facie case but whether the defendant has shown a bona fide defence, and the applicant must show reason to believe the plaintiff cannot pay costs

Reasoning

The court adopted the Court of Appeal's formulation in Shah v. Shah and Mwera J's reasoning in Cancer Investments. Although the 1st plaintiff in ELC 657 of 2013 resided outside Kenya and had donated a power of attorney, none of the plaintiffs were shown to lack means, and the applicant himself failed to demonstrate the plaintiffs' dire financial straits with evidence. The discretion to order security was therefore not exercised in the applicant's favour.

p. 3
02

Determination of ownership of the suit properties

Holding

Ownership of the suit properties, which are clouded by allegations of fraud, can only be determined at the full hearing

Reasoning

The court noted that the suit is premised on land, a subject of great emotional and sentimental value in Kenya, and that both parties allege fraud in the acquisition of the properties. Consequently, the court declined to make any determination on ownership on an interlocutory application and reserved that question for the full hearing.

p. 3

Legal principles established

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  • Ordering security for costs is discretionary and the applicant must demonstrate with evidence that the plaintiff would be unable to pay costs; mere apprehension does not suffice

Court orders

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  1. 1.The Notice of Motion dated 24th June 2014 is found not merited and is dismissed
  2. 2.Costs of the application awarded to the respondents/plaintiffs

Authorities

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Legislation

  • Civil Procedure RulesOrder 26 Rules 1, 5(1) and 6(1)
  • Civil Procedure ActSections 1A, 3A, 63(b) & (e)
  • Constitution of Kenya, 2010Article 40
  • Land Act2012

Cases cited (2)

  • Shah vs. Shah
    Civil Appeal No. 34 of 1981 (1982) KLR
  • Cancer Investments Ltd. v. Sayani Investments Ltd.
    Nairobi HCCC No. 854 of 2004 [2010] eKLR
Jurisdiction invoked
Order 26 Rules 1, 5(1) and 6(1) of the Civil Procedure Rules and sections 1A, 3A & 63(b) & (e) of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Friendrich Peitz & 2 others v Guy Spenser Elms & 3 others [2015] KEELC 825 (KLR)", Case Analysis (2015). ELC No. 657 of 2013 (Nairobi) & ELC No. 612 of 2013 (Nairobi) - Notice of Motion dated 24th June 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/825/eng@2015-10-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.