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ELCPartially AllowedNot stated in the ruling· [2018] KEELC 2903 (KLR)

John Kibet Rotich v Elijah Kibet Siele [2018] KEELC 2903 (KLR)

Environment and Land Court of Kenya
13 June 2018
1,439 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Kericho (J.M. Onyango J) determined the defendant's notice of application dated 14th March 2017 seeking a stay of the plaintiff's suit pending payment of Kshs. 183,440 in costs the plaintiff had been ordered to pay in two earlier suits (Bomet PMCC No. 53 of 2015, withdrawn with costs, and Kericho ELC Misc Application No. 56 of 2016, dismissed with costs), together with security for costs of Kshs. 200,000 and dismissal of the suit in default. The plaintiff opposed, asserting he was never served with the taxation notices, that he had instructed his advocate to challenge the costs, and that no execution had been attempted. The court framed two issues: whether the suit should be stayed pending payment of the prior costs, and whether security for costs should be ordered. Relying on Order 25 Rule 4 and the decision in I.M. N v P.M.K (Waweru J), the court held the costs due and payable and stayed the suit pending payment. On security for costs, balancing access to justice against the right to security and finding the plaintiff's conduct an abuse of process, the court ordered a deposit of Kshs. 100,000 within 30 days, failing payment of the total Kshs. 283,440 the suit to be struck out. Costs of the application were awarded to the defendant.

Key legal issues

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01

Stay of subsequent suit pending payment of unpaid costs of a discontinued suit

Holding

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.

Reasoning

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.

p. 2
02

Security for costs

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 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. 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

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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, "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.