Family Shade Africa Limited v Jane Wanjiku Gitau, Land Registrar, Nairobi & B.K Sila t/a Legacy Auctioneering Services [2018] KEELC 4740 (KLR)
The bottom line
#A company that bought land at auction lost its bid to make the current occupants pay Kshs. 8 million into court or vacate before trial.
What this practically means
#Executive summary
#Key legal issues
#Whether security for costs can be ordered in a miscellaneous file
The application for security for costs fails because nothing is pending in the miscellaneous application to warrant such an order, and the quantum sought was disproportionate
The applicant invoked Order 26 Rule 1 of the Civil Procedure Rules seeking Kshs. 8,000,000 as security for costs. The court reasoned that in the miscellaneous file nothing was pending to warrant an order for security for costs. It further observed that even if a suit were pending, costs could not be in the region of Kshs. 8,000,000, which equaled the value of the auctioned property. The prayer for removal of a caution had already been granted in a separate ruling.
Whether eviction orders pending a substantive suit should issue
Eviction pending the outcome of the substantive suit was refused because proceedings touching on the same subject matter were pending
The applicant sought an alternative prayer for eviction pending the outcome of the substantive suit. The court held it would not be appropriate to grant eviction orders when there were pending proceedings in the ELC file touching on the subject matter purchased by the applicant. Granting possession orders would therefore pre-empt the substantive determination.
Legal principles established
#- An order for security for costs requires pending proceedings or a suit in which costs may be secured; it cannot issue in a miscellaneous file where nothing is pending
Court orders
#- 1.The applicant's Notice of Motion dated 4th May 2017 is dismissed
- 2.Costs of the application to the first respondent
- Jurisdiction invoked
- Order 26 Rule 1 of the Civil Procedure Rules (security for costs)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Family Shade Africa Limited v Jane Wanjiku Gitau, Land Registrar, Nairobi & B.K Sila t/a Legacy Auctioneering Services [2018] KEELC 4740 (KLR)", Case Analysis (2018). Miscellaneous Application (Notice of Motion dated 4th May 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4740/eng@2018-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.