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ELCPartially AllowedELCC 71 of 2021

Messirez v Hazina Investment Company Limited & another (Environment and Land Case 71 of 2021) [2026] KEELC 834 (KLR)

Environment and Land Court
16 February 2026
5,537 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The 1st Defendant, Hazina Investments Co. Limited, moved the Environment and Land Court at Kwale by Notice of Motion dated 16th December 2025 under Order 26 Rule 5 of the Civil Procedure Rules, 2010 seeking dismissal of the Plaintiff's suit on the ground that the Plaintiff had failed to comply with the court order of 2nd October 2023 directing her to execute a bond for security for costs of Kshs. 3,000,000 within thirty days. The Defendant argued that the Plaintiff's filing of a personal undertaking rather than a proper bond - which should take the form of a bank guarantee, cash deposit or insurance bond - amounted to wilful disobedience of a valid, unappealed order, and relied on security-for-costs authorities including Westmont Holdings, Gatirau Peter Munya, D.T. Dobie and Hadkinson v Hadkinson. The Plaintiff countered that she had furnished security as far back as 2013, had since permanently relocated from Switzerland to Diani, Kwale County, and had executed further security documents in July 2025. Framing three issues - merit of the application, entitlement to reliefs, and costs - the court reaffirmed that court orders must be obeyed but held that dismissal is a draconian step which summarily terminates a claim without a hearing on the merits. Noting the suit had been reinstated, was part-heard with the Plaintiff nearly closing her case, the court declined outright dismissal as it would drive her from the seat of justice. Instead it ordered compliance within 45 days by executing a proper bond in an accepted form, filed and served within 14 days of execution, failing which the suit stands automatically dismissed without further application. Costs of the application were ordered to abide the outcome of the main suit.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 2.Whether the parties herein are entitled to the reliefs sought
  3. 3.Who bears the costs of the application?

Key legal issues

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01

Whether the suit should be struck out for non-compliance with the security for costs order

Holding

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

Reasoning

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.

p. 18
02

Whether a personal undertaking amounts to a proper bond for security for costs

Holding

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

Reasoning

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.

p. 18
03

Who bears the costs of the application

Holding

Costs of the application shall abide the outcome of the main suit

Reasoning

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.

p. 19

Legal principles established

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  • 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

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  1. 1.The Notice of Motion application dated 16th December 2025 is found to be partially meritorious
  2. 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. 3.The bond shall be filed in Court and served upon the 1st Defendant's Advocates within 14 days of execution
  4. 4.In default of compliance, the Plaintiff/Respondent's suit shall stand automatically dismissed without the necessity of further application
  5. 5.The matter to be mentioned on 4th May 2026 for compliance; upon full compliance, hearing on 13th October 2026
  6. 6.Costs of the application to abide the outcome of the main suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 18

Costs of the application to the 1st Defendant in any event

Costs ordered to abide the outcome of the main suit

p. 19

Costs

Costs of the Notice of Motion application dated 16th December 2025 shall abide the outcome of the main suit

Quotable passages

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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.
p. 20final orders - default clause
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/=)
p. 20final orders - compliance direction
To strike out the suit now would drive the Plaintiff/Respondent from the seat of justice without a determination of the substantive dispute.
p. 18access to justice
dismissal of a suit is a draconian step as it summarily terminates a party's substantive claim without a hearing on the merits
p. 17discretionary striking out
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.
p. 15obedience of court orders
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.
p. 16obligation to obey court orders

Issues in the judgment

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minor

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

minor

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

minor

The coram page spells the judge's name 'NAIKUINI' while the signature block reads 'NAIKUNI'

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, "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.