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ELCDismissedPetition No. 156 of 2015· [2018] KEELC 4805 (KLR)

Bakamoyo Ltd v Registrar of Mombasa District & 10 others [2018] KEELC 4805 (KLR)

Environment and Land Court
16 January 2018
1,041 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (A. Omollo, J) determined a Notice of Motion dated 8th September 2016 by the Interested Parties seeking security for costs of Kshs.800,000.00 to be deposited in a joint interest-earning account within 14 days, with a stay of proceedings in default, under Order 26 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act. The Interested Parties had been awarded taxed costs of Kshs.555,885 in JR No. 82 of 2011, which remained unpaid, and feared a repetition in the present Petition. The Petitioner opposed the application, explaining that it was only an Interested Party in the JR proceedings, that there were other respondents (the Chief Land Registrar and the Land Registrar, Kilifi), that it had already paid Kshs.250,000 with only Kshs.89,000 interest outstanding under an agreed arrangement, and that the Applicants had alternative means of recovering the balance. The court noted the Petition pre-existed the conclusion of the JR proceedings, so the Petitioner could not be accused of filing it to defeat costs. Distinguishing the authorities relied on by the Applicants, and holding that a letter admitting financial difficulties was not conclusive proof of meagre means, the court found ordinary cost-recovery mechanisms under the Civil Procedure Act adequate. The application was dismissed with costs to the Petitioner.

Key legal issues

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01

Whether security for costs should be ordered against the Petitioner

Holding

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

Reasoning

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.

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02

Whether the Applicants' precedents on security for costs applied

Holding

The court distinguished the authorities relied upon by the Applicants, finding the facts here materially different

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 8th September 2016 is dismissed
  2. 2.Costs of the application to the Petitioner

Authorities

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Legislation

  • Civil Procedure RulesOrder 26 Rule 1
  • Civil Procedure ActSections 1A, 1B and 3A

Cases cited (3)

  • Martha Wambui vs Irene Wanjiru and Another
    (2015) eKLR
  • Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 others
    (2014) eKLR
  • Patrick Kigera Mathia & Another vs DR Peter Mungai Ngugi & 2 other
    (2011) eKLR
Jurisdiction invoked
Order 26 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act

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, "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.