Christopher Musyoka Musau v Katherine Brown [2018] KEELC 413 (KLR)
The bottom line
#A Kenyan court confirmed that plaintiffs cannot force defendants to deposit money as security for costs — only defendants or third parties can make that application under Order 26.
What this practically means
#Executive summary
#Key legal issues
#Whether a Plaintiff can obtain security for costs from a Defendant under Order 26 Rule 1 of the Civil Procedure Rules
No. Order 26 confers the right to apply for security for costs on a Defendant or third party, not on a Plaintiff who has sued.
The court read Order 26 as a whole, noting Rule 5(1) contemplates dismissal of a Plaintiff's suit where security is not given, confirming the provision protects Defendants. A Plaintiff cannot both sue a Defendant and demand security to lock her out of defending. The Defendant had not denied residing abroad, but the procedural threshold failed and the application was dismissed with costs.
The test for security for costs
The applicant must establish that the respondent, if unsuccessful, would be unable to pay costs due to poverty; it is not enough to allege inability to pay. The court must also balance the injustice to both sides.
Relying on Shah vs. Shah and Gatirau Peter Munya, the court noted security is normally required from plaintiffs resident outside the jurisdiction, but courts retain a discretion to be exercised reasonably and judicially. In applications for security of costs, poverty-driven inability to pay must be established, not merely alleged, and the court balances the injustice to each party.
Legal principles established
#- It is the Defendant or a third party, not the Plaintiff, who may apply for security for costs under Order 26 of the Civil Procedure Rules.
- In an application for security of costs, the applicant must establish that the respondent, if unsuccessful, would be unable to pay costs due to poverty; mere allegation is insufficient.
Court orders
#- 1.The Application dated 29th September, 2016 is dismissed with costs
- Jurisdiction invoked
- Order 26 Rule 1 of the Civil Procedure Rules (discretion to order security for costs)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ethics and Anti -Corruption Commission v Gacanja & 2 others; Machakos County Government (As succession of County Council of Masaku) & another (Intended Defendant) (Environment & Land Case 127 of 2019) [2023] KEELC 396 (KLR)[2023] KEELC 396 (KLR)1 Feb 2023followed
- Clairmont Investments Limited v China Communications Construction Company Limited [2020] KEELC 2454 (KLR)[2020] KEELC 2454 (KLR)26 May 2020
- Clairmont Investments Limited v China Communications Construction Company Limited [2020] KEELC 2454 (KLR)[2020] KEELC 2454 (KLR)26 May 2020applied
Cite this brief
#Cite this brief
Caselaw, "Christopher Musyoka Musau v Katherine Brown [2018] KEELC 413 (KLR)", Case Analysis (2018). Not stated in the excerpt (Plaint dated 20th March, 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/413/eng@2018-12-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.