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ELRCDismissedReferenced 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· [2024] KEELRC 1207 (KLR)

Amadi v Great Lakes University of Kisumu (Cause E071 of 2023) [2024] KEELRC 1207 (KLR)

Employment and Labour Relations Court
22 May 2024
855 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant, Prof Anne Atieno Amadi, sued the Great Lakes University of Kisumu for breach of contract following her dismissal. The Respondent filed a Motion on 5 March 2024 seeking an order that the Claimant furnish security for the costs of the suit, arguing that she had absconded the court's jurisdiction after a warrant of arrest issued in contempt proceedings in Kisumu Chief Magistrate Court Civil Case No. E017 of 2020, which had ordered her to hand over after dismissal. The Claimant opposed the Motion, challenging the competence of the supporting affidavit (sworn before the Motion was dated), asserting she had planned to leave the country before the warrants issued, that she had written requesting facilitation of her handover, that she was gainfully employed in the United States, and that she could satisfy any costs order. The court, applying Order 26 of the Civil Procedure Rules and the principles in Jayesh Hasmukh Shah, Gatirau Peter Munya and Shah v Shah, held that security for costs is discretionary and must not impede access to justice; the applicant bears the burden of proving inability to pay costs. The Respondent did not controvert the Claimant's employment in the USA or her visits to Kenya, showed no permanent relocation or lack of assets, and had lodged no counterclaim despite leave. The court found no case for security and dismissed the Motion dated 5 March 2024 with costs in the cause.

Key legal issues

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01

Whether an order for security for costs should issue against a claimant residing outside the jurisdiction

Holding

The application was dismissed; residence abroad alone does not justify security for costs where the claimant has means and connections to the jurisdiction.

Reasoning

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.

p. 2
02

Burden of proof in security for costs applications

Holding

The applicant must prove, not merely allege, the respondent's inability to pay costs or lack of good faith.

Reasoning

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.

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Legal principles established

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  • 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

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  1. 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

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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, "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.