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ELCDismissedMiscellaneous Application (Notice of Motion dated 4th May 2017)· [2018] KEELC 4740 (KLR)

Family Shade Africa Limited v Jane Wanjiku Gitau, Land Registrar, Nairobi & B.K Sila t/a Legacy Auctioneering Services [2018] KEELC 4740 (KLR)

Environment and Land Court
29 January 2018
487 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Family Shade Africa Limited, which had purchased Dagoreti/Waithaka/846 at a public auction held on 28th May 2015 for Kshs. 8 Million, moved the court by Notice of Motion dated 4th May 2017 seeking, first, that the first respondent and/or her husband James Gitau Mukuria deposit Kshs. 8 Million into court as security, and alternatively that the respondent, her husband, family members, relatives, agents and servants vacate and hand over vacant possession of the suit premises pending the hearing of the substantive suit, HCC ELC No. 515 of 2015. The applicant complained that despite purchasing the property at auction, taking a loan for the purchase, it had never enjoyed the property. The first respondent opposed the application through a replying affidavit sworn on 19th September 2017, contending that the application was misconceived and unsupported by law, and that security for costs could not properly be sought in the sum equal to the value of the auctioned property. The court, considering the application under Order 26 Rule 1 of the Civil Procedure Rules, held that nothing was pending in the miscellaneous file to warrant an order for security for costs, and that even if a suit were pending, costs could not be in the region of Kshs. 8,000,000. The court further declined the eviction prayer, finding it inappropriate to order eviction while pending proceedings in ELC 514 of 2015 touched on the same subject matter. The application was dismissed with costs to the first respondent on 29th January 2018.

Key legal issues

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01

Whether security for costs can be ordered in a miscellaneous file

Holding

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

Reasoning

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.

p. 2
02

Whether eviction orders pending a substantive suit should issue

Holding

Eviction pending the outcome of the substantive suit was refused because proceedings touching on the same subject matter were pending

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The applicant's Notice of Motion dated 4th May 2017 is dismissed
  2. 2.Costs of the application to the first respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 26 Rule 1
Jurisdiction invoked
Order 26 Rule 1 of the Civil Procedure Rules (security for costs)

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, "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.