Messirez v Hazina Investment Company Limited & another (Environment and Land Case 71 of 2021) [2026] KEELC 834 (KLR)
The bottom line
#The court gave a plaintiff 45 days to provide real security for costs of Kshs 3 million, warning her land case will be automatically dismissed if she fails.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Notice of Motion application dated 16th December 2025 has any merit to wit, the Applicants have made a case to strike out the Suit
- 2.Whether the parties herein are entitled to the reliefs sought
- 3.Who bears the costs of the application?
Key legal issues
#Whether the suit should be struck out for non-compliance with the security for costs order
The court declined outright dismissal, holding dismissal is draconian and must be exercised judiciously; instead it issued conditional orders requiring strict compliance within 45 days, failing which the suit stands automatically dismissed
Order 26 Rule 5(1) mandates dismissal where security is not given, but Rule 5(2) and the constitutional imperatives of access to justice and Article 159(2)(d) require the discretion to be exercised judiciously. The suit had been reinstated, pre-trial directions taken and was part-heard with the Plaintiff about to close its case. Striking it out then would drive the Plaintiff from the seat of justice. However, continued partial compliance could not be condoned, so a final, strictly time-bound compliance regime with automatic dismissal in default was imposed.
Whether a personal undertaking amounts to a proper bond for security for costs
A proper bond must take the form of a bank guarantee, insurance bond from a reputable insurer, or cash deposit in a joint interest earning account as contemplated under Order 26 Rule 6; a litigant's own personal undertaking does not meet the legal threshold
The Applicant argued, and the court accepted, that a bond for security for costs must assure availability of funds if costs are awarded - ordinarily a bank guarantee, cash deposit or insurance bond - and any undertaking must come from a third party, not the litigant herself. The Plaintiff's filing of a personal undertaking in place of the ordered bond therefore did not constitute compliance with the order of 2nd October 2023, which remains valid, binding and enforceable, having never been appealed or reviewed.
Who bears the costs of the application
Costs of the application shall abide the outcome of the main suit
Section 27(1) of the Civil Procedure Act provides that costs follow the event, and the courts have held that this principle is compensatory rather than punitive. In the circumstances of the case, doing justice to both parties required deferring the costs question until the outcome of the main suit is known, rather than awarding costs to either party immediately.
Legal principles established
#- Dismissal for failure to provide security for costs under Order 26 Rule 5(1) is discretionary and must be balanced against access to justice; the court may grant conditional compliance orders rather than immediate dismissal
- Court orders are binding and must be obeyed unless set aside on review or appeal
- Costs follow the event under Section 27(1) of the Civil Procedure Act
Court orders
#- 1.The Notice of Motion application dated 16th December 2025 is found to be partially meritorious
- 2.The Plaintiff/Respondent is ordered within 45 days to execute and file a proper bond for security for costs of Kshs. 3,000,000 in the form of a bank guarantee, insurance bond from a reputable insurer, or a cash deposit in a joint interest earning account in the names of the parties' advocates
- 3.The bond shall be filed in Court and served upon the 1st Defendant's Advocates within 14 days of execution
- 4.In default of compliance, the Plaintiff/Respondent's suit shall stand automatically dismissed without the necessity of further application
- 5.The matter to be mentioned on 4th May 2026 for compliance; upon full compliance, hearing on 13th October 2026
- 6.Costs of the application to abide the outcome of the main suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 25(c), 48, 50(1) & (2) and 159(2)(d) of the Constitution of Kenya, 2010; Sections 3 & 13 of the Environment & Land Court Act, No. 19 of 2011; Sections 1A, 1B, 3A and 27(1) of the Civil Procedure Act, Cap 21; Order 26 and Order 2 Rule 15 of the Civil Procedure Rules, 2010
Relief refused
#Dismissal of the Plaintiff's suit as a whole
Dismissal is a draconian sanction; the suit is part-heard and the Plaintiff should not be driven from the seat of justice, so conditional orders were issued instead
Costs of the application to the 1st Defendant in any event
Costs ordered to abide the outcome of the main suit
Costs
Costs of the Notice of Motion application dated 16th December 2025 shall abide the outcome of the main suit
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
THAT in default of compliance within the stipulated period, the Plaintiff/Respondent's suit shall stand automatically dismissed without the necessity of further application.
THAT the Plaintiff/Respondent be and is hereby ordered WITHIN FORTY-FIVE (45) DAYS from the date hereof, execute and file a proper bond for security for costs in the sum of Kenya Shillings Three Million (Kshs. 3,000,000/=)
To strike out the suit now would drive the Plaintiff/Respondent from the seat of justice without a determination of the substantive dispute.
dismissal of a suit is a draconian step as it summarily terminates a party's substantive claim without a hearing on the merits
Court orders are not made in vain and are meant to be complied with. Disobedience of court orders erodes the dignity and authority of the courts and the rule of law itself.
It is the plain and unqualified obligation of every person against whom an order is made to obey it unless and until that order is discharged.
Issues in the judgment
#The ruling is internally inconsistent on the sanction: it states dismissal for non-compliance is not warranted, yet the final orders impose automatic dismissal in default of compliance within 45 days
The disposition numbering jumps from paragraph 23 to 27 and the heading for Issue (a) refers to 'the Applicants' plural although there is only one applicant
The coram page spells the judge's name 'NAIKUINI' while the signature block reads 'NAIKUNI'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Messirez v Hazina Investment Company Limited & another (Environment and Land Case 71 of 2021) [2026] KEELC 834 (KLR)", Case Analysis (2026). ELCC 71 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/834/eng@2026-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.