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ELCDismissedNot stated on the face of the extract· [2024] KEELC 5406 (KLR)

Milele Homes Limited v Mambomoto Homes Limited (Environment and Land Appeal 6 of 2023) [2024] KEELC 5406 (KLR)

Environment and Land Court
11 July 2024
LKL. Komingoi
1,197 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court at Kajiado dismissed a bid to make a tenant deposit Kshs. 1.35 million as security for costs, ruling the claim was premature and unproven.

What this practically means

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Executive summary

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The Applicant, Appellant in an appeal before the Environment and Land Court at Kajiado, moved the court by Notice of Motion dated 12th October 2023 under Sections 1A, 3A and 63(e) of the Civil Procedure Act and Order 26 Rule 1 of the Civil Procedure Rules, seeking an order that the Respondent give security for costs of Kshs. 1,348,900 or such other sum, to be deposited in a joint interest-earning account. The Applicant, through Evance Otieno, alleged the Respondent was in rent arrears, had issued bouncing cheques, had vacated the suit premises with no known physical residence, and intended to leave the court's jurisdiction, defeating any eventual award. The Respondent, through Director Lucy Kamau, opposed, contending only Kshs. 315,500 was owed at eviction, the bounced cheques were settled, the Applicant had carted away goods valued at Kshs. 1,300,000, and the Applicant had not demonstrated inability to pay. The court framed two issues: whether security for costs was merited and who should bear costs. Holding that security for costs is a discretionary, case-by-case entitlement under Order 26 Rule 1, and guided by Marco Tool & Explosives Ltd v Mamujee Brothers Ltd and Westmont Holdings SDN BHD v Central Bank of Kenya, the court found the security demand was premised on rental arrears still pending determination at the lower court, amounting to an abuse of process, and that incapacity to pay, flight risk or unknown location had not been proved. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether security for costs should be ordered against the Respondent

Holding

The application was not merited; it was dismissed.

Reasoning

The Applicant sought security founded on claimed rental arrears of Kshs. 1,348,900, but the underlying suit at the lower court arose from rent and rental obligations yet to be determined. Seeking security premised on an undecided claim was an abuse of process. Further, the Applicant failed to prove the Respondent's incapacity to pay, flight risk or unknown whereabouts. The court also noted a prior conditional stay order requiring a Kshs. 200,000 deposit with no evidence of compliance.

p. 3
02

Costs of the application

Holding

Costs awarded to the Respondent as the successful party.

Reasoning

The Applicant's motion failed entirely; costs followed the event in favour of the Respondent.

p. 3

Legal principles established

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  • Security for costs is a discretionary remedy under Order 26 Rule 1 of the Civil Procedure Rules, exercised judicially on a case-to-case basis
  • A court has an unfettered though judicial discretion to order or refuse security for costs
  • In determining whether to order security for costs, the court may have regard to the genuineness of the proceedings and other relevant matters in the peculiar circumstances of each case

Court orders

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  1. 1.The application dated 12th October 2023 is dismissed with costs to the Respondent
On appeal from
Magistrate's Court
Not stated
Jurisdiction invoked
Sections 1A, 3A and 63(e) of the Civil Procedure Act; Order 26 Rule 1 and Order 51 Rule 1 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, "Milele Homes Limited v Mambomoto Homes Limited (Environment and Land Appeal 6 of 2023) [2024] KEELC 5406 (KLR)", Case Analysis (2024). Not stated on the face of the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5406/eng@2024-07-11

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