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ELCDismissed· [2021] KEELC 1481 (KLR)

Omar Hassan v Watson Mogere & 2 others [2021] KEELC 1481 (KLR)

Environment and Land Court
18 October 2021
2,051 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (E. K. Wabwoto, J) determined the Defendants' Notice of Motion dated 29th April 2021 seeking an order that the Plaintiff furnish security for the Defendants' costs in the sum of Ksh 1,500,000, deposited jointly in the names of the parties' advocates, with the suit to be dismissed in default. The Defendants, through an affidavit of the 2nd Defendant, Benjamin Omanwa Mokua, asserted that the Plaintiff has no known assets out of which any award of costs could be satisfied. The Plaintiff, Omar Hassan, opposed the application, contending that it was brought in bad faith, that no basis was laid for the sum claimed, that he is a Kenyan citizen resident in the country, and that the application sought to deny him access to justice. The sole issue was whether the Defendants had made out a case warranting an order for security for costs. The court set out Order 26 Rules 1, 5 and 6 of the Civil Procedure Rules and the governing principles, including the Supreme Court's decision in Gatirau Peter Munya v Dickson Mwenda Githinji, that the applicant bears the onus of proving the respondent's inability to pay costs due to poverty, and mere allegation is insufficient. Noting that the Plaintiff had deponed that he is a Kenyan citizen residing at a known address since 2005, and that the Defendants furnished no cogent evidence of financial instability, the court held it could not make the order, the more so as Article 48 guarantees access to justice. The application was dismissed with costs in the cause, and the parties were directed to take practical steps to progress the suit to trial.

Key legal issues

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01

Whether the Defendants established grounds for an order for security for costs against the Plaintiff

Holding

The application was dismissed; the Defendants failed to discharge the burden of proving the Plaintiff's inability to pay costs

Reasoning

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.

p. 3
02

Purpose and limits of security for costs

Holding

Security for costs protects defendants from losing litigation costs and deters frivolous litigation, but must not deny access to justice

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Defendants' Notice of Motion application dated 29th April 2021 seeking security for costs is declined and dismissed
  2. 2.Costs shall be in the cause
  3. 3.Parties directed to take practical steps to progress the case to trial without further delay

Authorities

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Legislation

  • Civil Procedure RulesOrder 26 Rules 1, 5 and 6
  • Advocates Remuneration OrderNot specified (referred to generally on costs assessment)
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 159(1)

Cases cited (10)

  • Shah & others vs Manurama Limited & Others
    [2003] EA 294 (HCU)
  • Ahmed Kulimye bin vs Kenya Revenue Authority & Others
    [2012] eKLR
  • Kibiwott & 4 Others vs Registered Trustees of Monastry our Lady of Victory
    [2004] eKLR; HCCC No. 146 of 2004
  • Jayesh Hasmukh Shah vs Narin Haira & Another
    [2015] eKLR
  • Noornamohammed Abdullah v Rachorbhai J. Patel
    (1962) EA 447
  • Aggrey Shivona v Standard Group Plc
    [2020] eKLR
  • Kenya Education Trust Katherine S.M. Whitton
    [2011] eKLR
  • Marco Tools & Explosives Ltd v Mamujee Brothers Ltd
    [1988] KLR 730
  • Europa Holdings Limited v Circle Industries (UK)
    BCLC 320 CA
  • Gatirau Peter Munya v Dickson Mwenda Githinji & 2 Others
    CA No. 38 of 2013 [2014] eKLR
Jurisdiction invoked
Order 26 Rules 1, 5 and 6 of the Civil Procedure Rules

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, "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.