Bakamoyo Ltd v Registrar of Mombasa District & 10 others [2018] KEELC 4805 (KLR)
The bottom line
#The Environment and Land Court in Mombasa refused to force a petitioner to deposit Kshs.800,000 as security for costs because the applicants failed to prove the petitioner could not pay.
What this practically means
#Executive summary
#Key legal issues
#Whether security for costs should be ordered against the Petitioner
No - the application failed because the Petitioner had already paid Kshs.250,000 of the taxed costs, was not the sole respondent in the prior suit, and the Applicants did not prove impecuniosity
The court examined the history of JR No. 82 of 2011, noting the Petitioner had paid Kshs.250,000 with only Kshs.89,000 interest outstanding, that the Petitioner was not the initiator of the prior suit nor its sole party, and that costs in the prior suit were awarded against parties whose decisions were under challenge. The letter of 13th March 2017 was held not conclusive proof of meagre means. The Applicants were found to have made insufficient inquiry into the Petitioner's finances, and ordinary cost-recovery mechanisms under the Civil Procedure Act were adequate.
Whether the Applicants' precedents on security for costs applied
The court distinguished the authorities relied upon by the Applicants, finding the facts here materially different
The court noted the Petitioner did not commence JR No. 82 of 2011 (which was initiated by the Applicants), had already paid half the taxed costs, was not sued alone (the Chief Land Registrar and Land Registrar, Kilifi were also respondents), and that the decision challenged in the JR was that of the 1st and 2nd Respondents. The instant Petition pre-existed the conclusion of the JR, so the Petitioner could not be accused of filing it while aware of outstanding costs. These factors took the case outside Order 26 and the cited authorities.
Legal principles established
#- A party seeking security for costs must demonstrate, with cogent material, that the respondent is of meagre means such that recovery of costs would be difficult
- A winning party has recourse to the Civil Procedure Act and Rules, including attachment and sale by public auction, to recover costs, making pre-emptive security unnecessary absent proof of impecuniosity
Court orders
#- 1.The Notice of Motion dated 8th September 2016 is dismissed
- 2.Costs of the application to the Petitioner
- Jurisdiction invoked
- Order 26 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bakamoyo Ltd v Registrar of Mombasa District & 10 others [2018] KEELC 4805 (KLR)", Case Analysis (2018). Petition No. 156 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4805/eng@2018-01-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.