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ELCDismissedMachakos ELC (Notice of Motion dated 15/11/2023)· [2025] KEELC 4510 (KLR)

Nyawira & 13 others v Galot Industries Limited (Enviromental and Land Originating Summons E005 of 2020) [2025] KEELC 4510 (KLR)

Environment and Land Court
17 June 2025
AKA. Y. Koross
1,968 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to force land plaintiffs to deposit Sh5 million before trial, confirming security for costs is only granted in exceptional circumstances.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (A. Y. Koross, J) determined a notice of motion dated 15 November 2023 in which Galot Industries Limited, the respondent in the main suit, sought an order that the applicants deposit Kshs. 5,000,000/- as security for costs within 14 days, failing which the suit would stand dismissed. The respondent grounded the application on prior eviction orders issued in Machakos ELC No. 26 of 2014 against the applicants, their alleged disappearance, untraceable whereabouts, and similar inability to recover costs in related proceedings, as well as the applicants' loss of interest in prosecuting the suit. The applicants opposed through a replying affidavit sworn by Martha Nyawira, arguing that the motion was brought in bad faith to stifle their right of access to justice under Article 48 of the Constitution, that the respondent had not proved impecuniosity on their part, and that they were strangers to the previous cases. The court framed a single issue: whether the motion met the legal threshold for security for costs. Applying Section 27(1) of the Civil Procedure Act and Order 26 Rule 1 of the Civil Procedure Rules, and guided by the Supreme Court's decision in Westmont Holdings v Central Bank of Kenya, the court weighed the applicants' access to justice against the respondent's right to expeditious disposal. It found the applicants were strangers to the previous eviction proceedings, and while their four-year inactivity was condemnable, it did not establish that cost recovery would be impossible. The court dismissed the motion with costs in the cause and directed a mention for pretrial directions.

Key legal issues

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Whether the respondent met the threshold for an order for security for costs under Section 27(1) of the Civil Procedure Act and Order 26 Rule 1 of the Civil Procedure Rules

Holding

The respondent did not meet the threshold; the motion was dismissed.

Reasoning

The court applied Section 27(1) of the Civil Procedure Act and Order 26 Rule 1 of the Civil Procedure Rules, guided by the Supreme Court's principles in Westmont Holdings v Central Bank of Kenya, which require balancing Article 48 access to justice against the respondent's interests. The respondent relied on previous eviction proceedings against strangers to this suit and the applicants' 4-year inactivity. The court found neither ground persuasive: the applicants were not parties to the previous cases, and their lethargy did not establish impossibility of recovering costs.

p. 5

Legal principles established

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  • Security for costs is granted only in exceptional circumstances and each case is considered on its own merits, balancing access to justice under Article 48 against expeditious disposal under Article 159(2)(b)
  • The burden lies on the party moving for security for costs to satisfy the grounds to the satisfaction of the court
  • Parties who were not parties to previous proceedings should not suffer adverse consequences of those proceedings

Court orders

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  1. 1.The notice of motion dated 15/11/2023 is dismissed with costs being in the cause
  2. 2.The matter to be mentioned for pretrial directions
Jurisdiction invoked
Section 27(1) of the Civil Procedure Act and Order 26 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, "Nyawira & 13 others v Galot Industries Limited (Enviromental and Land Originating Summons E005 of 2020) [2025] KEELC 4510 (KLR)", Case Analysis (2025). Machakos ELC (Notice of Motion dated 15/11/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4510/eng@2025-06-17

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