Plaintiff v Defendant (application for security for costs)

and has no known assets within Kenya that could ofiset the costs, were the same to be granted to the Defendant. In reply to the said application, the Plaintifi/Respondent states that the applicant must demonstrate that the Plaintifi will not be able to satisfy an order for costs made at the end of the trial should she loose the case. She states that no cogent evidence has been brought before this court. She further states that she is a Kenyan by birth and also has residence within the jurisdiction. She states that she was last in Kenya in February 2020. 5. In support of his submissions, Mr. Githuka counsel on record for the Defendant/Applicant relied on the authority in the case of Indemnity Insurance Company of North America & 2 Others – vKenya Airfreight Handling Limited & Another [2001]eKLR, where Hon. Justice T. Mbaluto stated as follows; “In my view, the above passage as well as the other authorities already referred to establish that financial status is not a major factor in the consideration of an application for security for costs against a plaintifi residing abroad and that what is of significance is whether the defendant’s recovery of its costs, if it is successful in the litigation, would be dificult and costly. That I think is the correct test to apply in an application of this nature.” 6. In the case of Ruhrpumpen Global Limited – v- Zakhem International Construction Limited & Another [2016]eKLR, Hon. Justice F. Ochieng stated as follows at page 4; “Even if the Plaintifi has demonstrated ability to pay costs, if the said Plaintifi is resident abroad and if he does not have assets within the jurisdiction of the Court, it would usually be more expensive, time-consuming, inconvenient and uncertain to pursue him for costs. In such circumstances, the Court is likely to exercise its discretion, and to order the Plaintifi to provide security for costs.” 7. In the case of Shah – v- Shah (1982) KLR 95, at page 98, the Court stated as follows; “The general rule is that security is normally required from the Plaintifis resident outside the jurisdiction but as was agreed in the court below, a court has a discretion, to be exercised reasonably and judicially, to refuse to order that security be given.” 8. From the material placed before the Court, it is evident that the Plaintifi herein is mainly based in the United States of America. Though she states that she has residence in Kenya, the Court cannot tell whether she has assets in Kenya. The purpose of issuing an order for security for costs is not in any way to punish the Plaintifi or to stifie a genuine claim by the Plaintifi, but to alleviate dificulty on the part of a successful defendant in realizing costs awarded. It is also to save a successful defendant from incurring extra costs in having a judgment executed abroad. Under Section 1A of the Civil Procedure Act Cap. 21, the overriding objective of the Act and the rules made thereunder is to facilitate the just, expeditious, proportionate and afiordable resolution of the civil disputes governed by the Act. For purposes of furthering the overriding objective under Section 1A, Section 1B requires that the Court handles all matters presented before it for purposes of attaining inter alia the timely disposal of the proceedings at a cost afiordable by the respective parties. 9. The fact that the application was not brought earlier on or during the lifetime of the deceased Samuel Kimani Nganga is not a bar to the same being brought now. Having considered the present application in totality, I find that it merits grant of the order sought. The applicant seeks security for cost in the sum of Ksh. 1,500,000/=. He did not however provide justification for the said amount. In the circumstances and being guided by decided cases of the Superior Courts, I assess the security for costs at Ksh. 1,000,000/=. https://new.kenyalaw.org/akn/ke/judgment/kemc/2021/12/eng@2021-03-18 2

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10. I therefore allow the application dated 18th November 2020 and order the Plaintifi to deposit the sum of Ksh. 1,000,000/= being the security for the Defendant’s costs, in a bank or a reputable financial institution in the joint names of the Plaintifi’s and the Defendant’s Advocates’ firms within 60 days from the date of delivery of this ruling. Costs of the application shall be in the cause. RULING DELIVERED AND SIGNED AT NGONG THIS 18TH DAY OF MARCH 2021 In the Presence of: Ms. Cuna for Plaintifi/Respondent Mr. Githuka for Defendant/Applicant Court Assistant - Caroline HON. P. ACHIENG SENIOR PRINCIPAL MAGISTRATE https://new.kenyalaw.org/akn/ke/judgment/kemc/2021/12/eng@2021-03-18 3

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