Shariff v Nyamawi & 3 others (Environment & Land Case 29 of 2022) [2023] KEELC 664 (KLR)
The bottom line
#A Kenyan court refused to force a Canadian-based land plaintiff to deposit Kshs. 750,000 as security, ruling that living abroad alone doesn't prove costs would be unrecoverable.
What this practically means
#Executive summary
#Key legal issues
#Whether a plaintiff resident outside Kenya should be ordered to furnish security for costs
Residence outside the jurisdiction alone does not justify an order for security for costs; the defendant must prove the plaintiff has no attachable assets and show a bona fide defence
The court accepted that the plaintiff lives in Canada, but held the burden lay on the 2nd Defendant to show recovery of costs would be impossible. No evidence of absence of attachable assets was adduced; a bare assertion was insufficient. The court also noted allegations of fraud cannot be resolved summarily and the plaintiff's right to a hearing under Article 50(1) militated against loading hardship on the path of a hearing.
Whether allegations of fraud against the 2nd Defendant (an advocate) could be resolved on the security-for-costs application
No - allegations of fraud cannot be resolved summarily and require trial and cross-examination
The plaintiff alleged the 2nd Defendant acted fraudulently by entering appearance and filing pleadings without instructions. The 2nd Defendant denied this, stating it acted for parties in the consolidated suits. The court held such allegations must be tested at trial through cross-examination, and imposing security at the interlocutory stage would contravene the Article 50(1) right to a fair hearing.
Legal principles established
#- The test in an application for security for costs is not whether the Plaintiff has established a prima facie case but whether the Defendant has shown a bonafide defence
- The order for security for costs is discretionary and factors such as absence of known assets in the country and the bona fides of the claim may be taken into account
Court orders
#- 1.The 2nd Defendant's application dated 3rd June 2022 seeking security for costs is dismissed
- 2.Costs of the application awarded to the Plaintiff
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court (application for security for costs in a pending land suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shariff v Nyamawi & 3 others (Environment & Land Case 29 of 2022) [2023] KEELC 664 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/664/eng@2023-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.