High Court 10131 of 2026

unsuccessful in this suit, by reason of poverty be unable to pay the costs of the suit. Analysis and Determination 4. I have carefully considered the Application (and its Supporting Affidavit), the Plaintiff’s Response, and the parties’ submissions. The issue for determination is whether the Defendant has made a case for an order for deposit of security for costs of this suit. 5. Order 26 Rule 1 of the Civil Procedure Rules, provides that in any suit, the court may order that security for the whole or any part of the costs of any defendant or third party or subsequent party, be given by the other party. 6. Security for costs is a procedural tool intended to protect a defendant against the risk that, if successful, it may be unable to recover its costs from the plaintiff. It is an order that pending the hearing and determination of a suit, the claimant should deposit security for costs. 7. In civil litigation; an unsuccessful party is as a general rule required to pay the successful party’s litigation costs. Therefore, an order for security for costs of a suit, was intended to protect a defendant against the risk of being unable to enforce any costs that it may later obtain upon being successful in the suit. Its purpose is to ensure justice between the parties; and not to punish a plaintiff or claimant for bringing the suit. 8. It is usually issued where the plaintiff is resident outside the court’s jurisdiction, or where the claimant is impecunious or insolvent, or where the plaintiff is a nominal plaintiff. Any of these grounds could justify the issuance of an order for security. NAIROBI HC Civil Case No. E009 of 2025 2

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9. This means the mere fact of residence outside jurisdiction, should not be the sole consideration. In my view, this factor has to be considered alongside other considerations. Especially the likelihood of the plaintiff being unable or unwilling to pay costs, should it eventually lose the case. 10. There is however a mistaken view that the order should issue in every suit where the Plaintiff resides outside the jurisdiction, or where the suit is for enforcement of a foreign judgment. 11. In Shah v. Shah [1982] KLR, the Court of Appeal held that as a general rule, security is normally required from plaintiffs that reside outside the jurisdiction; but that a court has a discretion to grant or refuse to order that such security be given. 12. In Kenya, Article 48 of the 2010 Constitution guarantees the right of access to justice. It is averse to any order that would unjustifiably curtail, inhibit or impede that right. With the promulgation of this Constitution, all preexisting statutes construed and with subsidiary legislation such modifications, must be adaptations, qualifications and exceptions, as may be necessary to bring them into conformity with the Constitution. 13. This is in terms of The Transitional and Consequential Provisions set out in the Sixth Schedule of the Constitution. Kenyan courts have used these provisions to navigate such laws and legal provisions, to ensure conformity with the Constitution and to avoid injustice. 14. Therefore, in the post-2010 Kenya, security for costs may be ordered only in exceptional and deserving circumstances. Not as a matter of course. Given that the NAIROBI HC Civil Case No. E009 of 2025 3

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order has the potential to curtail, inhibit or impede access to justice. In any case, the order is a discretionary one, and which discretion ought to at all times be exercised judiciously and for the ends of justice. 15. Accordingly, courts should issue this order very sparingly and only where there exist circumstances or factors that make the issuance of such order imperative. 16. The order should be granted as an exception and not as the norm. Not as a common place order. This is to ensure that the order is not used to unnecessarily curtail, unnecessarily inhibit or unnecessarily impede a claimant’s access to justice. 17. With the right to fair trial and the right to be heard, a defendant ought to focus on winning the suit, rather than on placing in the claimant’s way, the pre-trial hurdle of security for costs. Courts ought not to become preoccupied with costs at the pre-judgment stage. They should focus on the trial of the suit. They should be reluctant to permit interlocutory applications for security for costs to overshadow the substantive determination of the dispute. 18. The risk of the claimant being unwilling or unable to pay the costs, ought not to be merely speculative. It has to be sufficiently demonstrated to be existent and actual; and based on some prima facie evidence. It ought to be a real probability, and not a mere possibility. 19. Indeed, no evidence of such has been placed before this Court; other than the fact that the Plaintiff is a foreign company and the judgment it is seeking to enforce in this suit, is a foreign judgment. There is no assertion or even NAIROBI HC Civil Case No. E009 of 2025 4

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suggestion that the Plaintiff is a sham entity, or is insolvent. 20. In Westmount Holdings SDN BHD v. Central Bank of Kenya & 2 Others [2023] KESC 11 (KLR), the Supreme Court of Kenya enumerated some of the factors that a court should consider in determining whether or not to order deposit of security for costs of a suit. It stated as follows: “.....the court could have regard to the following matters and such other matters as it considered relevant in the peculiar circumstances of each case: - the impecuniosity of the plaintiff; proceedings; the the genuineness prospects of of the success or merits of the proceedings; whether an order for security for costs would stifle the proceedings and/or impede access to justice; whether there had been an admission or payment in court; whether the security sought was proportionate to the importance and complexity of the subject matter in dispute....” 21. In the present case, the Defendant relies solely on the Plaintiff’s status as a foreign company, and the fact that the suit seeks enforcement of a foreign judgment. Those considerations, without more, are insufficient to justify an order for security for costs. They ought to have been accompanied by evidence demonstrating a reasonably foreseeable likelihood or actual risk of the Plaintiff being unable or unwilling to pay costs, should the suit eventually fail. NAIROBI HC Civil Case No. E009 of 2025 5

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Final Disposition 22. In the end, I find that the two reasons that the Defendant has advanced for supporting its application for an order that the Plaintiff deposits security for costs of this suit, are not legally sufficient to sustain the order. Those two reasons would have been supplemented with other factors substantiated and demonstrating a reasonably foreseeable likelihood or actual risk of the Plaintiff being unable or unwilling to pay the costs of the suit should it be unsuccessful. 23. This application therefore fails, and is hereby dismissed with costs. DATED and DELIVERED at NAIROBI Virtually on this 6th day of July 2026. PROF (DR) NIXON SIFUNA JUDGE NAIROBI HC Civil Case No. E009 of 2025 6

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