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ELCDismissedNot stated in the judgment· [2025] KEELC 6725 (KLR)

Kamau v Mandal & another (Environment and Land Case Civil Suit E009 of 2021) [2025] KEELC 6725 (KLR)

Environment and Land Court
7 October 2025
AKA. Y. Koross
3,729 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~15 min to read original · ~4 min brief

The bottom line

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A Machakos land court dismissed both a review application and a demand for security for costs, warning parties against using applications to delay or sidestep a fair trial.

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 two notices of motion in a pending suit over land parcels L.R. Nos. 12715/1223 and 12715/1224. By motion dated 16/02/2023 the plaintiff sought review of the court's ruling of 9/11/2022, arguing an error apparent on the face of the record: that the court had ruled on parcel L.R. 1224 which she said was not the subject of the defendants' motion, and that the court erred on service of summons. The defendants opposed through a replying affidavit sworn by their counsel, Phoebe Mwaniki, which the plaintiff challenged. By motion dated 7/11/2024 the defendants sought security for costs, contending the plaintiff's financial standing and assets were unknown, rendering any costs award irrecoverable, and sought dismissal of the suit if security was not deposited. The court framed three issues: the competency of counsel's affidavit, the threshold for review, and security for costs. It held that counsel could swear the affidavit as her averments were confined to facts within her knowledge, per Order 19 Rule 3(1) and Hakika Transporters. On review, applying Section 80 of the Civil Procedure Act, Order 45 Rule 1 and Parliamentary Service Commission v Wambora, it found no error apparent on the face of the ruling and held the plaintiff was impermissibly re-arguing her case. On security for costs, applying Westmont Holdings v Central Bank of Kenya and Alpha Fine Foods, it held the defendants had not discharged the onus, as the plaintiff is resident in Kenya and unknown assets alone cannot deny her access to justice. Both motions were dismissed with costs in the cause, further applications were restricted save by leave, and a mention date was set for pretrial directions.

Key legal issues

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01

Whether counsel for the defendants could adequately depose the affidavit of 26/05/2023

Holding

The affidavit was properly before the court as counsel deponed only to facts within her knowledge as counsel on record

Reasoning

Order 19 Rule 3(1) of the Civil Procedure Rules permits averments within personal knowledge, and Rule 8 of the Advocates (Practice) Rules permits affidavits on formal or non-contentious matters. Relying on Hakika Transporters Services Ltd v Albert Chulah Wamimitaire, the court found counsel's averments concerned the ruling and her conduct of the defence, all within her knowledge, so the objection failed.

p. 4
02

Whether the plaintiff met the legal threshold for review of the orders of 9/11/2022

Holding

The plaintiff failed to demonstrate any error apparent on the face of the record; the motion for review was dismissed

Reasoning

Under Section 80 of the Civil Procedure Act and Order 45 Rule 1, an applicant must show discovery of new matter, error apparent on the face of the record, or other sufficient reason. Guided by Parliamentary Service Commission v Wambora, the court found the plaintiff was attempting to re-argue the issue of service, a matter for appeal, and that the ruling granting set-aside of the judgment contained no error.

p. 5
03

Whether an order for security for costs should be made

Holding

The defendants' application for security for costs was dismissed

Reasoning

Section 27(1) of the Civil Procedure Act and Order 26 empower the court to order security for costs, guided by Westmont Holdings v Central Bank of Kenya. The plaintiff is within the Kenyan jurisdiction so any decree is enforceable locally; the defendants produced no tangible evidence of impecuniosity. Ordering security merely because the plaintiff's assets are unknown would stifle access to justice under Article 48.

p. 7

Legal principles established

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  • Counsel may swear affidavits limited to facts within their own knowledge, particularly formal or non-contentious matters
  • Review is not a right but an equitable remedy; an applicant cannot use review to re-argue the application
  • Security for costs is discretionary and granted only in exceptional circumstances; impecuniosity of a natural person plaintiff alone is insufficient
  • The burden lies on the party seeking security for costs to substantiate the grounds for the order

Court orders

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  1. 1.The notices of motion dated 16/02/2023 and 7/11/2024 are hereby dismissed with costs being in the cause.
  2. 2.Unless with leave of the court, there shall be no further filing of applications in this matter.
  3. 3.A mention date shall be given for purposes of pretrial directions.
Jurisdiction invoked
Original civil jurisdiction; applications brought under Section 80 of the Civil Procedure Act, Order 45 Rule 1, Order 19 Rule 3(1) and Order 26 of the Civil Procedure Rules, and Section 27(1) of the Civil Procedure Act

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, "Kamau v Mandal & another (Environment and Land Case Civil Suit E009 of 2021) [2025] KEELC 6725 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6725/eng@2025-10-07

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