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ELCAllowedNot stated in the judgment· [2016] KEELC 436 (KLR)

Arnest Njoroge Maina & another v Samuel Maina Macharia [2016] KEELC 436 (KLR)

Environment and Land Court
7 October 2016
LWL N Waithaka
874 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nyeri court lifted an order protecting land because the applicants ignored a court order to deposit Kshs. 100,000 as security for costs.

What this practically means

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Executive summary

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The applicants, Arnest Njoroge Maina and Florence Wanja Njoroge, moved the court by notice of motion dated 30th May 2015 seeking the lifting or discharge of an order issued on 12th May 2014 inhibiting dealings with LR No. Loc.2/Gacharage/3556. The inhibition had been issued to preserve the land pending hearing of an originating summons. The application was grounded on the fact that, by a ruling of 3rd March 2015, the court had directed deposit of Kshs. 100,000/- as security for costs within 45 days, which the applicants failed to do. The respondent, though served and attested by an affidavit of service, filed no response. Justice Waithaka framed a sole issue: whether the applicants had made out a case for lifting the orders. Relying on Peter Munya v Dickson Mwenda on the rationale for security for costs, and on Bulk Medicals Limited v Paramount Universal Bank Ltd on the consequences of breach of such orders, the court invoked Order 26 Rule 5(1) of the Civil Procedure Rules, 2010. Noting that the applicants had neither deposited the security nor offered any explanation for non-compliance, the court, though observing that the application was not one for dismissal of the suit as contemplated by the rule, held that a case had been made and allowed the application as prayed. Judgment was delivered at Nyeri on 7th October 2016.

Key legal issues

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01

Whether failure to deposit security for costs as ordered justified discharge of the inhibition order

Holding

The court allowed the application, finding the applicants' failure to comply with the security order without explanation warranted granting the orders sought

Reasoning

The court relied on the Court of Appeal's rationale for security for costs in Peter Munya v Dickson Mwenda and the effect of non-compliance in Bulk Medicals Limited, invoking Order 26 Rule 5(1). Although the application was not for dismissal of the suit, the applicants' unexplained non-compliance satisfied the court that the orders sought should issue.

p. 2

Legal principles established

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  • Where security for costs is not given within the time ordered, the court shall upon application dismiss the suit

Court orders

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  1. 1.The notice of motion dated 30th May 2015 allowing the application as prayed — lifting/discharging of the order inhibiting dealings with LR No. Loc.2/Gacharage/3556

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 26 Rule 5(1)
  • Order XXV Rule 5(1) (as cited in Bulk Medicals)Order XXV Rule 5(1)

Cases cited (2)

  • Peter Munya Vs Dickson Mwenda
  • Bulk Medicals Limited (In Receivership) v. Paramount Universal Bank Ltd & 2 Others
    (2012) eKLR
Jurisdiction invoked
Order 26 Rule 5(1) of the Civil Procedure Rules, 2010

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, "Arnest Njoroge Maina & another v Samuel Maina Macharia [2016] KEELC 436 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/436/eng@2016-10-07

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