Plaintiff v Defendant (application for security for costs)
The bottom line
#A Kenyan court ordered a US-based plaintiff to deposit Ksh. 1 million as security before her lawsuit could continue, protecting the defendant's ability to recover costs.
What this practically means
#Executive summary
#Key legal issues
#Whether security for costs should be ordered against a plaintiff resident abroad
Yes. The plaintiff was mainly based in the United States; the court could not establish that she had assets in Kenya, and security was ordered to protect a successful defendant's ability to realise costs
Order 26 rule 1 gives the court wide latitude to order security for costs. The authorities establish that the key test is whether recovery of costs by a successful defendant would be difficult and costly, not the plaintiff's financial status. The plaintiff was mainly based in the USA; although she claimed residence in Kenya, the court could not tell whether she had assets in Kenya. Security would save a successful defendant the extra cost of executing a judgment abroad, consistent with the overriding objective under Sections 1A and 1B of the Civil Procedure Act.
The quantum of security for costs
The court assessed security at Ksh. 1,000,000/=, reducing the Ksh. 1,500,000/= sought because no justification was provided for that amount
While the court found the application merited grant of the order sought, the defendant sought Ksh. 1,500,000/= without providing justification for that figure. Guided by decided cases of the Superior Courts, the court exercised its discretion and assessed the security at Ksh. 1,000,000/=, to be deposited within 60 days in a joint interest-bearing arrangement in the parties' advocates' joint names.
Legal principles established
#- The purpose of an order for security for costs is to alleviate difficulty in realising costs awarded, not to punish the plaintiff or stifle a genuine claim
- Where a plaintiff is resident abroad and has no assets within the jurisdiction, the court is likely to order security for costs
Court orders
#- 1.The application dated 18th November 2020 is allowed
- 2.The Plaintiff to deposit Ksh. 1,000,000/= as security for the Defendant's costs in a bank or reputable financial institution in the joint names of the Plaintiff's and Defendant's Advocates' firms within 60 days from the date of delivery of the ruling
- Jurisdiction invoked
- Order 26 rule 1 of the Civil Procedure Rules, 2010; Sections 1A and 1B of the Civil Procedure Act, Cap. 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Plaintiff v Defendant (application for security for costs)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2021/12/eng@2021-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.