SRK Sons Limited v Moennsad & another (Environment and Land Case E611 of 2025) [2026] KEELC 3025 (KLR)
The bottom line
#A Kenyan court ordered a foreign defendant to deposit Kshs. 1.2 million as security for costs, but refused to grant eviction orders before a full hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court should exercise its jurisdiction to order security for costs despite the prior proceedings having been struck out for want of jurisdiction
Yes. The application was a fresh invocation of the Court's jurisdiction in a live dispute, not an enforcement of the void orders. The 1st Defendant's status as a non-resident foreigner with no demonstrated assets grounded an identifiable risk, warranting security for costs.
The Court noted it was not disputed that MCELC No. E170 of 2025 was struck out and its orders discharged. The application did not seek to revive or enforce those orders but invoked the Court's own discretion under Order 26. The uncontroverted fact that the 1st Defendant is a foreign national with no assets within the jurisdiction established a real risk that a costs decree would be unenforceable, tilting the balance in favour of securing that risk.
Whether the Plaintiff was entitled to interlocutory orders for vacant possession, eviction and possession
No. Those prayers were substantive and final, not preservatory, and could not be granted at an interlocutory stage.
Applying the Giella principles and Mrao definition of a prima facie case, the Court held the determination turned on the nature of the relief: the prayers sought to conclusively determine possession, the central issue in dispute. Granting them would dispose of the suit without full hearing and offend fair hearing and due process. No exceptional circumstances justified mandatory interlocutory relief.
Who should bear the costs of the applications
Costs in the cause, because both parties had partial success.
The general principle is that costs follow the event. Since the Plaintiff obtained preservatory relief but the substantive prayers for possession and eviction were declined, both parties had partial success, making it just and fair that costs be in the cause rather than awarded to either party.
Legal principles established
#- A fresh invocation of a competent court's jurisdiction is not an attempt to enforce orders of a court that lacked jurisdiction; the court may exercise its own discretionary power to order security for costs
- Security for costs may be ordered where a defendant is a foreign national without known assets within the jurisdiction, creating an identifiable risk of unrecoverable costs
- Final, determinative relief such as vacant possession and eviction cannot be granted at an interlocutory stage absent exceptional circumstances
Court orders
#- 1.An order for security for costs issued against the 1st and 2nd Defendants, who shall jointly and severally deposit Kshs. 1,200,000/= in Court within thirty (30) days
- 2.Pending compliance, the sum of Kshs. 1,200,000/= currently held in MCELC No. E170 of 2025 shall be maintained for thirty (30) days
- 3.In default of compliance, the said sum of Kshs. 1,200,000/= shall be transferred to this suit and held as security for costs pending hearing and determination of the suit
- 4.Prayers (3), (4) and (5) in the application dated 2nd December 2025 (vacant possession, eviction, and authority to take possession) declined, to await determination of the substantive suit
- 5.Costs shall be in the cause
- Jurisdiction invoked
- Original jurisdiction under Order 40, Order 26 and Order 39 of the Civil Procedure Rules and Section 1A of the Civil Procedure Act (first-instance interlocutory applications)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SRK Sons Limited v Moennsad & another (Environment and Land Case E611 of 2025) [2026] KEELC 3025 (KLR)", Case Analysis (2026). Not stated in the judgment (references Milimani MCELC No. E170 of 2025 as prior proceedings). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3025/eng@2026-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.