Clairmont Investments Limited v China Communications Construction Company Limited [2020] KEELC 2454 (KLR)
The bottom line
#The Environment and Land Court in Kajiado dismissed a bid to make China Road and Bridge Corporation deposit Kshs. 25 million as security, ruling a plaintiff cannot seek such orders and produced no proof the company was leaving Kenya.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant should be compelled to provide security of Kshs. 25 million for performance of any decree
The application was unmerited and dismissed; the Plaintiff failed to establish the threshold for security.
Order 26 Rule 1 confines security for costs to defendants or third parties, so a plaintiff cannot invoke it. Order 39 Rule 5 requires proof, by affidavit or otherwise, that the defendant intends to obstruct or delay execution by disposing of or removing property from the jurisdiction. The Plaintiff asserted the Defendant was packing up and leaving the country and held a local bank account, but produced no supporting documents. The authorities relied on by the Plaintiff were distinguishable, and the court associated itself with decisions refusing security in similar circumstances.
Distinction of Juanco SPS Limited v Dominion Farms Limited relied on by the Plaintiff
Distinguished on its facts.
The Plaintiff relied on Juanco SPS Limited v Dominion Farms Limited, but the court found that case materially different: there were invoices and delivery notes evidencing a claim due and owing, and the defendant there was in financial difficulties as shown by its assets being advertised for public auction. None of those circumstances were present here, so the decision could not assist the Plaintiff.
Legal principles established
#- Under Order 26 Rule 1 of the Civil Procedure Rules, security for costs is orderable only in favour of a defendant or third/subsequent party, not a plaintiff.
- A party seeking security or attachment under Order 39 Rule 5 must substantiate, by affidavit or otherwise, an intent to obstruct or delay execution by disposing of or removing property from the jurisdiction.
Court orders
#- 1.The Notice of Motion dated 17th September 2019 is dismissed with costs
- Jurisdiction invoked
- Sections 1A, 1B, 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Clairmont Investments Limited v China Communications Construction Company Limited [2020] KEELC 2454 (KLR)", Case Analysis (2020). Notice of Motion dated 17th September 2019 in the main suit. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2454/eng@2020-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.