Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEnvironmental and Land Originating Summons E002 of 2023· [2023] KEELC 21487 (KLR)

Wambua v Ngilai

Environment and Land Court
14 November 2023
COChristine Ochieng
1,173 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to force a land claimant to deposit Kshs. 300,000 as security because the defendant offered no real proof he couldn't pay costs.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Machakos (Christine Ochieng, J) determined the Defendant's Notice of Motion dated 1st March 2023 in an adverse possession suit over land parcel Wamunyu/Kilembwa/84. The Defendant, who purchased the suit land at a public auction in 2005 following the Plaintiff's loan default with Kenya Commercial Bank and was registered as owner in 2007, sought an order directing the Plaintiff to deposit Kshs. 300,000 into court as security for costs, or alternatively that the court determine the amount and time for payment, plus costs of the application. He alleged he did not know the Plaintiff, who was acting in person, nor the Plaintiff's physical address or source of income, and would face great difficulty recovering costs if the suit failed. The Plaintiff opposed, contending the application was made in bad faith to stifle his access to justice, that he was a Kenyan of means with various assets, and that the Defendant had not met the required threshold. The court framed a single issue: whether the Plaintiff should be directed to deposit Kshs. 300,000 as security for costs. Applying Order 26 Rule 1 of the Civil Procedure Rules and the Court of Appeal decisions in Gatirau Peter Munya v Dickson Mwenda Kithinji and Thomas Opiyo v Teleposta Pension Scheme, the court held that an applicant must demonstrate the respondent would be unable to pay costs if unsuccessful. The Defendant's averments were found to be mere allegations without proof. The application was dismissed with costs in the cause.

Key legal issues

#
01

Whether security for costs should be ordered against the Plaintiff

Holding

Application dismissed; the Defendant failed to lay a proper evidentiary basis for security for costs

Reasoning

Order 26 Rule 1 empowers the court to order security for costs, but the applicant must establish that the respondent, if unsuccessful, would be unable to pay costs due to poverty. The Defendant relied only on allegations that he did not know the Plaintiff's physical address or source of income. The Plaintiff asserted he was a person of means with various assets and was represented by an advocate. The court found the averments were mere allegations with no proof and dismissed the motion.

Legal principles established

#
  • An applicant for security for costs must establish, with evidence, that the respondent would be unable to pay costs if unsuccessful; mere allegations of not knowing the respondent's address or income are insufficient

Court orders

#
  1. 1.The Defendant's Notice of Motion Application dated 1st March 2023 is dismissed
  2. 2.Costs will be in the cause
Jurisdiction invoked
Order 26 Rule 1 of the Civil Procedure Rules (security for costs jurisdiction of the Environment and Land Court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Wambua v Ngilai", Case Analysis (2023). Environmental and Land Originating Summons E002 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21487/eng@2023-11-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.