Omar Hassan v Watson Mogere & 2 others [2021] KEELC 1481 (KLR)
The bottom line
#A Kenyan court refused to force a plaintiff to deposit Ksh 1.5 million as cost security because defendants offered no real proof he couldn't pay.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendants established grounds for an order for security for costs against the Plaintiff
The application was dismissed; the Defendants failed to discharge the burden of proving the Plaintiff's inability to pay costs
The court applied Order 26 of the Civil Procedure Rules and the authorities, including Gatirau Peter Munya v Dickson Mwenda Githinji, holding that the applicant must prove inability to pay costs due to poverty, not merely allege it. The Plaintiff deposed that he is a Kenyan citizen residing at a known address since 2005. No material was placed before the court demonstrating financial instability, and the court had to balance the order against the constitutional right of access to justice under Article 48.
Purpose and limits of security for costs
Security for costs protects defendants from losing litigation costs and deters frivolous litigation, but must not deny access to justice
The court outlined the dual purpose of security for costs: protecting a defendant who is dragged to court from losing the costs of litigation, and preventing frivolous and useless litigation. However, courts must ensure that parties with just claims are not prevented from accessing the seat of justice, invoking Article 48 and Article 159(1) of the Constitution.
Legal principles established
#- An applicant for security for costs bears the onus of proving that the respondent would be unable to pay costs if unsuccessful; mere allegation is insufficient
- Security for costs is discretionary and the court must ensure just claims are not barred from access to justice
Court orders
#- 1.The Defendants' Notice of Motion application dated 29th April 2021 seeking security for costs is declined and dismissed
- 2.Costs shall be in the cause
- 3.Parties directed to take practical steps to progress the case to trial without further delay
- Jurisdiction invoked
- Order 26 Rules 1, 5 and 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omar Hassan v Watson Mogere & 2 others [2021] KEELC 1481 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1481/eng@2021-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.