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ELCDismissedNot stated in judgment· [2018] KEELC 3169 (KLR)

Mathew M. Kisao & 43 others v Chandan Jethanand Gidoomal & 2 others [2018] KEELC 3169 (KLR)

Environment and Land Court
25 May 2018
611 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that plaintiffs cannot force a non-party to deposit security for costs—Order 26 rule 1 protects defendants, not the people suing.

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 Mombasa (A. Omollo, J) on a notice of motion dated 11th April 2017 brought by the plaintiffs under Order 26 rule 1 and Order 51 rule 1 of the Civil Procedure Rules. The plaintiffs sought an order compelling Kigo Ng'ang'a and his advocate, Mr E. Waithira, to deposit Kshs 500,000 as security for costs before being heard, plus costs of the application. The plaintiffs argued that Ng'ang'a habitually filed applications that were dismissed with costs which he never paid, and that his advocate was party to a consent reached in the Court of Appeal abandoning interlocutory applications. Ng'ang'a opposed, stating he was not a party to the suit. The court reviewed the annexures and found only one application (dated 11th July 2014) attributable to Ng'ang'a; another was commenced by one Musa Kwinga, described as the 22nd applicant, with no pleaded nexus to Ng'ang'a, and other annexures concerned criminal proceedings against other individuals. The alleged Court of Appeal consent order was not annexed, and any breach of it would be punishable by the court that made it. Construing Order 26 rule 1, the court held that the provision contemplates security for the costs of a defendant or third or subsequent party, not of a plaintiff, and cannot be invoked against a non-party. The plaintiffs' remedies were to join Ng'ang'a if they had a claim against him or to execute for costs in the normal manner. The application was dismissed for want of merit with no order as to costs.

Key legal issues

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01

Availability of an order for security for costs against a non-party in favour of plaintiffs

Holding

The orders sought are not available to the applicants; Order 26 rule 1 applies only to security for costs of a defendant or subsequent party, and alleged breach of a Court of Appeal consent is a matter for that court

Reasoning

The court examined the annexures and found only one application attributable to Kigo Ng'ang'a; the alleged Court of Appeal consent order was not annexed, and any breach of it is punishable by the court that made it. Order 26 rule 1, on its plain reading, secures costs for a defendant or third or subsequent party, not for plaintiffs, and cannot be directed at a non-party. The plaintiffs' remedy is execution for costs in the normal manner or joining Ng'ang'a if they have a claim.

p. 2

Legal principles established

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  • Order 26 rule 1 CPR contemplates security for costs in favour of a defendant or third party, not in favour of a plaintiff, and cannot be invoked against a person who is not a party to the proceedings

Court orders

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  1. 1.The notice of motion dated 11th April 2017 is dismissed for want of merit with no order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 26 rule 1
  • Civil Procedure RulesOrder 51 rule 1
Jurisdiction invoked
Order 26 rule 1 and Order 51 rule 1 of the Civil Procedure Rules

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, "Mathew M. Kisao & 43 others v Chandan Jethanand Gidoomal & 2 others [2018] KEELC 3169 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3169/eng@2018-05-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.