Friendrich Peitz & 2 others v Guy Spenser Elms & 3 others [2015] KEELC 825 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Test for ordering security for costs
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
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.
Determination of ownership of the suit properties
Ownership of the suit properties, which are clouded by allegations of fraud, can only be determined at the full hearing
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 24th June 2014 is found not merited and is dismissed
- 2.Costs of the application awarded to the respondents/plaintiffs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.