John Kibet Rotich v Elijah Kibet Siele [2018] KEELC 2903 (KLR)
The bottom line
#A Kericho court stayed a land suit because the plaintiff hadn't paid costs from earlier failed cases, warning the case would be struck out if payment wasn't made.
What this practically means
#Executive summary
#Key legal issues
#Stay of subsequent suit pending payment of unpaid costs of a discontinued suit
The costs of Kshs. 183,440 in the prior suits were due and payable and the court exercised its discretion to stay the subsequent suit until they are paid.
Order 25 Rule 4 gives the court a discretion to stay a subsequent suit brought on the same or substantially the same cause of action before payment of costs of a discontinued suit. It was common ground that the plaintiff had discontinued/dismissed prior suits with costs to the defendant and had not paid Kshs. 183,440. The plaintiff's only excuse was non-service of the taxation notice, which was disputed. The discretion must accord with the dictates of justice, and the plaintiff's conduct justified the stay.
Security for costs
The court ordered the plaintiff to deposit Kshs. 100,000 as security for costs within 30 days, failing which the suit would be struck out.
Order 26 Rule 1 permits the court to order security for the costs of a defendant. The plaintiff's conduct in not paying costs already ordered, while wishing to proceed with the suit, was an abuse of court process. The defendant's apprehension that the plaintiff may not pay costs if dismissed was well founded given the plaintiff's previous conduct, warranting security for costs.
Legal principles established
#- Where a subsequent suit is brought before payment of costs of a discontinued suit on the same or substantially the same cause of action, the court has a discretion to stay the subsequent suit until such costs are paid.
- In an application for security for costs, the court must balance the right of access to justice against the right to security for costs.
Court orders
#- 1.The suit stayed pending payment of Kshs. 183,440 by the plaintiff to the defendant on account of costs in Bomet PMCC No. 53 of 2015 and Kericho ELC Misc Application No. 56 of 2016
- 2.The plaintiff to deposit in court Kshs. 100,000 as security for costs within 30 days; if the total Kshs. 283,440 is not paid within 30 days, time being of essence, the suit to be struck out
- 3.Costs of the application to be borne by the plaintiff/respondent
- Jurisdiction invoked
- Order 25 Rule 4 and Order 26 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Kibet Rotich v Elijah Kibet Siele [2018] KEELC 2903 (KLR)", Case Analysis (2018). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2903/eng@2018-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.