Amadi v Great Lakes University of Kisumu (Cause E071 of 2023) [2024] KEELRC 1207 (KLR)
The bottom line
#A Kenyan court refused to make a US-based professor pay upfront costs for suing her former employer, because living abroad alone doesn't mean you can't pay.
What this practically means
#Executive summary
#Key legal issues
#Whether an order for security for costs should issue against a claimant residing outside the jurisdiction
The application was dismissed; residence abroad alone does not justify security for costs where the claimant has means and connections to the jurisdiction.
Order 26 of the Civil Procedure Rules envisages security for costs, but the court emphasized that such an order must not impede access to justice. The Respondent did not controvert that the Claimant was gainfully employed in the USA and had visited Kenya several times since the warrant issued. No evidence suggested permanent relocation or absence of assets, and the Respondent had not filed a Counterclaim despite leave. Applying Jayesh Hasmukh Shah, Gatirau Peter Munya and Shah v Shah, the Respondent failed to discharge its burden.
Burden of proof in security for costs applications
The applicant must prove, not merely allege, the respondent's inability to pay costs or lack of good faith.
Relying on the Supreme Court's decision in Gatirau Peter Munya v Dickson Mwenda Githinji, the court held that it is not enough to allege that a respondent would be unable to pay costs if unsuccessful; the applicant bears the onus of proving such inability or lack of good faith making an order for security reasonable. The Respondent adduced no such proof, resting instead on the fact that the Claimant had left the jurisdiction and on outstanding contempt proceedings.
Legal principles established
#- An order for security for costs is discretionary and must be exercised reasonably in the circumstances of each case
- The applicant for security for costs bears the burden of proving that the respondent, if unsuccessful, would be unable to pay costs due to poverty
- In considering security for costs, a court must not impede the litigant's right of access to justice
- While security is normally required from plaintiffs resident outside the jurisdiction, the court retains a discretion, exercisable reasonably and judicially, to refuse it
Court orders
#- 1.The Motion dated 5 March 2024 is dismissed with costs in the cause
- Jurisdiction invoked
- Not expressly stated; the Court exercised first-instance jurisdiction over an employment contract claim under the Employment and Labour Relations Court's statutory jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amadi v Great Lakes University of Kisumu (Cause E071 of 2023) [2024] KEELRC 1207 (KLR)", Case Analysis (2024). Referenced in judgment as arising from Kisumu Chief Magistrate Court Civil Case No. E017 of 2020 (contempt proceedings); the ELRC suit number itself is not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1207/eng@2024-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.