Micahel Odera Otom v Commissioner of Lands & 2 others [2016] KEELC 1219 (KLR)
The bottom line
#A Kenyan court ordered a land plaintiff to deposit Kshs.500,000 as security for costs, but reduced the amount so his case could still go to trial.
What this practically means
#Executive summary
#Key legal issues
#Whether to order the Plaintiff to deposit security for costs
Application allowed; security of Kshs.500,000/= ordered, less than the Kshs.1,500,000/= sought, given the lateness of the application, the Plaintiff's readiness for hearing and the need to preserve access to justice.
The court adopted the Keary Development principles, which both counsel agreed upon. It found no evidence that costs awarded against the Plaintiff had been unpaid despite timelines or execution attempts, and noted the delay in the main hearing was attributable in part to the 3rd Defendant's own application. The Plaintiff did not, however, dispute concerns about his means. Balancing these factors, a lower, reasonable security figure was appropriate.
Lateness of the security-for-costs application
The application, filed almost two years after the suit commenced, was a relevant circumstance weighing against the amount and urgency of the order.
The court noted the record showed the Plaintiff had moved to fix the main suit for hearing and was ready with one witness; the hearing could not start only because the 3rd Defendant's counsel insisted their application be disposed of first. Lateness under the Keary principles therefore informed the court's discretion.
Plaintiff's financial standing
The Plaintiff failed to place facts before the court to dispute the concern that he might be unable to meet an adverse costs order.
The Plaintiff did not disclose assets or means beyond a photograph of a permanent house; disclosing indicators of ability to pay could have addressed the 3rd Defendant's concerns. This failure supported ordering some security, though a modest amount so the order would not stifle the claim.
Legal principles established
#- The court has a complete discretion whether to order security for costs, guided by a balancing exercise between the injustice to the plaintiff of being prevented from pursuing a claim and the injustice to the defendant of being unable to recover costs, having regard to the plaintiff's prospects of success, the amount sought, the risk of stifling a valid claim and the lateness of the application.
- The burden lies on the applicant for security to show the plaintiff would be unable to pay costs if unsuccessful; mere allegation of poverty without evidence of failed execution does not suffice, and the amount fixed must be reasonable so as not to bar access to justice.
Court orders
#- 1.The Plaintiff is directed to provide security for costs by depositing Kshs.500,000/= in an interest-earning account in a financial institution agreed between the parties' advocates in joint names within thirty (30) days, or alternatively deposit a security or securities of a similar amount with the court within thirty (30) days
- 2.In default of compliance, the 3rd Defendant be at liberty to move the court for a dismissal order in accordance with Order 26 rule 5(1) of the Civil Procedure Rules
- 3.Costs will be in the cause
- Jurisdiction invoked
- Order 26 Rules 1, 5(1) and 6 and Order 51 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Micahel Odera Otom v Commissioner of Lands & 2 others [2016] KEELC 1219 (KLR)", Case Analysis (2016). Not stated in the judgment (main suit; notice of motion dated 11th May 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1219/eng@2016-03-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.