Kimara v Ananas Holdings Limited & 4 others; Survey & 3 others (Interested Parties) (Environment and Land Case Civil Suit 37 of 2020) [2022] KEELC 3776 (KLR)
The bottom line
#A Kenyan court threw out both a land injunction bid and a Kshs 30.7 million security-for-costs demand, keeping the case alive.
What this practically means
#Executive summary
#Key legal issues
#Whether an interlocutory application survives when the party on whose behalf it was brought has been struck out of the suit
The application dated June 9, 2020 was dismissed because the supporting affidavit was sworn by the 2nd Plaintiff as chairman of the 1st Plaintiff, which had been removed from the suit
The Court had on October 1, 2020 upheld the 4th Interested Party's preliminary objection and struck out the 1st Plaintiff for lack of locus standi. The supporting affidavit still purported to act for the removed party. Orders cannot issue for a stranger to the suit, so the application fell with the 1st Plaintiff.
Whether security for costs should be ordered against the 2nd Plaintiff under Order 26 of the Civil Procedure Rules
The 1st Defendant's application for security for costs of Kshs 30,740,000/= was dismissed
The Court recognised its unfettered discretion but held that impecuniosity is not the only factor; the investigation report did not even establish that the person named in it was the Plaintiff. Balancing Articles 48 and 50, and given the public-interest underpinning of a claim rooted in Article 67 historical land injustices, ordering security would stifle a legitimate claim.
Which party the security application is directed against after removal of the 1st Plaintiff
The application would be considered only against the 2nd Plaintiff, the sole remaining Plaintiff
Since the 1st Plaintiff had been struck out and the plaint not amended, the Court confined the security-for-costs application to the 2nd Plaintiff, the sole Plaintiff, relying on its earlier ruling of October 1, 2020.
Legal principles established
#- Court orders are not made in vain; it is pointless to issue orders for or against a party who is a stranger to a suit
- The requirement to lodge security for costs is determined case by case, and its purpose is to protect defendants from frivolous litigation, balancing access to justice under Articles 48 and 50 of the Constitution
- The discretion to order security for costs must be exercised judicially and must not drive a party from the seat of justice
Court orders
#- 1.The Plaintiff's application dated June 9, 2020 is dismissed
- 2.The 1st Defendant's Notice of Motion dated June 22, 2020 is dismissed
- 3.Each party to meet their costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (suit land Thika Municipality Block 14/102, formerly LR No 1316); Article 67 of the Constitution invoked on historical land injustices
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimara v Ananas Holdings Limited & 4 others; Survey & 3 others (Interested Parties) (Environment and Land Case Civil Suit 37 of 2020) [2022] KEELC 3776 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3776/eng@2022-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.