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ELCPartially AllowedPetition (court file number not stated in the judgment)· [2018] KEELC 890 (KLR)

Mwichwiri Farmers Company Ltd v Cabinet Secretary, Ministry of Land and Settlement & 4 others [2018] KEELC 890 (KLR)

Environment and Land Court
2 October 2018
2,194 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 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

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Executive summary

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This is a ruling of the Environment and Land Court at Nyeri (L N Waithaka, J) on a notice of motion by interested parties seeking security for costs of Kshs. 2,000,000/- in a constitutional petition, failing which dismissal of the petition, and in the alternative leave for their names to be expunged from the suit. The applicants, members/shareholders of the petitioner company, contended that Simon Muruthi George filed the petition without their authorization and that they had received their title deeds and had no interest in the petition. The petitioner opposed, arguing the application was frivolous, brought under the wrong provisions of law (the Civil Procedure Rules rather than the Mutunga Rules), and that the applicants were free to withdraw. The court framed a sole issue: whether the applicants had made up a case for the orders sought. Applying Article 22(2) and (3) of the Constitution and the Mutunga Rules, the court held that the Civil Procedure Rules provisions on security for costs were the wrong provisions of law for an Article 22 petition, and that under the Mutunga Rules there is no provision for security for costs, costs being discretionary under Rule 24. Relying on Peter Munya v Dickson Mwenda Kithinji and Noormohamed Abdulla v Ranchhodbhal J. Patel, the court held that security for costs requires balancing access to justice against the right to security for costs, and found the applicants' reasons incapable of supporting the order. On the alternative prayer, the court observed the applicants had joined the suit by consent only to seek to leave a day later, conduct it described as frivolous. The prayer for security for costs was dismissed; the applicants were allowed to exit the proceedings but at their own risk as to any adverse orders, with fourteen days to file a notice of intention to leave, and costs of the application to abide the outcome of the petition.

Key legal issues

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01

Applicable procedural regime in a constitutional petition

Holding

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

Reasoning

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.

p. 3
02

Whether security for costs should be ordered against the interested parties

Holding

No; the reasons given by the applicants were incapable of founding an order for security for costs

Reasoning

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.

p. 4
03

Whether the interested parties could exit the proceedings and be shielded from adverse orders

Holding

They may exit, but at their own risk as to adverse orders; their conduct in joining and immediately seeking to leave was frivolous

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The prayer for security for costs is dismissed
  2. 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. 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. 4.The costs of the application shall abide the outcome of the petition

Authorities

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Legislation

  • Constitution of KenyaArticle 22(2)
  • Constitution of KenyaArticle 22(3)(c) and (d)
  • Constitution of KenyaArticle 24(1)(d)
  • Constitution of KenyaArticle 258
  • Civil Procedure Rules (CPR)Order 26 Rules 1, 5 and 6
  • Civil Procedure ActSections 1A, 1B and 3A
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules, 2012 (Mutunga Rules)Rules 24(a) and 24(b)
  • Companies Actnot specified

Cases cited (2)

  • Peter Munya v. Dickson Mwenda Kithinji & 2 Others
    (2014) eKLR
  • Noormohamed Abdulla -vs- Ranchhodbhal J. Patel & Another
    (1962) E.A. 448
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

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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, "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.