Mwichwiri Farmers Company Ltd v Cabinet Secretary, Ministry of Land and Settlement & 4 others [2018] KEELC 890 (KLR)
The bottom line
#A Nyeri court refused to make a petitioner deposit KShs 2 million as security for costs in a constitutional land case, ruling the wrong legal rules were used.
What this practically means
#Executive summary
#Key legal issues
#Applicable procedural regime in a constitutional petition
The Mutunga Rules, not the Civil Procedure Rules, govern Article 22 petitions; an application for security of costs founded on the CPR is premised on the wrong provisions of the law
Article 22(2) obligates the Chief Justice to make rules for court proceedings for enforcement of the Bill of Rights, satisfying criteria under Article 22(3), including that no fee may be charged and that the court not be unreasonably restricted by procedural technicalities. Pursuant to that edict the Chief Justice made the Mutunga Rules, which apply to all proceedings under Articles 22 and 258. Since the petition is expressed to be brought under Article 22, the CPR provisions on security for costs have no application.
Whether security for costs should be ordered against the interested parties
No; the reasons given by the applicants were incapable of founding an order for security for costs
The court reviewed the rationale for security for costs as articulated by the Court of Appeal in Peter Munya v Dickson Mwenda Kithinji and in Noormohamed Abdulla v Ranchhodbhal J. Patel: to protect a party from an insolvent litigant carrying on litigation indefinitely. The court held it must balance the right of access to justice against the right to security for costs, and having considered the case urged by the applicants, found the reasons given incapable of forming a ground for the orders sought.
Whether the interested parties could exit the proceedings and be shielded from adverse orders
They may exit, but at their own risk as to adverse orders; their conduct in joining and immediately seeking to leave was frivolous
The applicants had applied by consent to be enjoined as interested parties and barely a day later sought to walk out while asking the court not to issue orders adverse to their titles. The court held such conduct cannot be expected of litigants who joined on the premise that their rights stood to be trampled upon, and that a party who of free will chooses not to participate cannot limit the court on the orders circumstances may call for.
Legal principles established
#- In a constitutional petition under Article 22, the applicable procedural rules are the Mutunga Rules and not the Civil Procedure Rules; the Mutunga Rules make no provision for security for costs
- In considering an application for security for costs the court must balance the competing rights of access to justice and security for costs
- A party who voluntarily exits proceedings does so at the risk of any adverse orders the circumstances of the case may warrant
Court orders
#- 1.The prayer for security for costs is dismissed
- 2.The applicants are at liberty to exit the proceedings but at their own risk as to any adverse orders the circumstances of the case may warrant being made against them
- 3.If the applicants opt to leave the proceedings, they should do so by filing and serving a notice to that effect within fourteen (14) days from the date of delivery of the ruling, failing which they would be deemed to have chosen to proceed as parties to the suit
- 4.The costs of the application shall abide the outcome of the petition
- Jurisdiction invoked
- Articles 22 and 258 of the Constitution of Kenya (enforcement of Bill of Rights / constitutional petition), with the application brought under Order 26 Rules 1, 5 and 6 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwichwiri Farmers Company Ltd v Cabinet Secretary, Ministry of Land and Settlement & 4 others [2018] KEELC 890 (KLR)", Case Analysis (2018). Petition (court file number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/890/eng@2018-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.