[2018] KEELC 4740 (KLR)
The court found that there was no pending substantive suit in this miscellaneous application to warrant an order for security for costs. The amount sought as security (Kshs. 8,000,000) was excessive and not commensurate with the likely costs of litigation. Additionally, the prayer for eviction was inappropriate as...
Source-derived case information.
- Citation
- [2018] KEELC 4740 (KLR)
- Parties
- Applicant: Family Shade Africa Limited; Respondent: Jane Wanjiku Gitau; Respondent: The Land Registrar, Nairobi; Respondent: B.K Sila t/a Legacy Auctioneering Services
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 300 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Security for Costs and Eviction Pending Main Suit
- Outcome
- application dismissed with costs to the first respondent
- Legal Topics
- Security for Costs, Interlocutory Applications, Eviction Orders, Public Auction Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Family Shade Africa Limited
Applicant
Jane Wanjiku Gitau
Respondent
The Land Registrar, Nairobi
Respondent
B.K Sila t/a Legacy Auctioneering Services
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Security for Costs and Eviction Pending Main Suit
Legal Issues
- 1 Whether the applicant is entitled to an order for security for costs in the sum of Kshs. 8,000,000 in this miscellaneous application.
- 2 Whether the applicant is entitled to an order for eviction pending the hearing and determination of the substantive suit.
Ratio Decidendi
The court found that there was no pending substantive suit in this miscellaneous application to warrant an order for security for costs. The amount sought as security (Kshs. 8,000,000) was excessive and not commensurate with the likely costs of litigation. Additionally, the prayer for eviction was inappropriate as there were ongoing proceedings in ELC 514 of 2015 concerning the same property. Granting eviction at this stage would prejudice the pending suit. Consequently, the application lacked merit and was dismissed with costs to the first respondent.
Court Disposition
application dismissed with costs to the first respondent
Orders
- The applicant's application dated 4th May 2017 is dismissed with costs to the first respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC NO. 300 OF 2015
FAMILY SHADE AFRICA LIMITED................................................APPLICANT
=VERSUS=
JANE WANJIKU GITAU.....................................................1ST RESPONDENT
THE LAND REGISTRAR, NAIROBI..................................2ND RESPONDENT
B.K SILA T/A LEGACY AUCTIONEERING SERVICES..3RD RESPONDENT
RULING
1. The applicant , Family Shade Africa Limited filed a Notice of Motion dated 4th May 2017 in which it seeks the following reliefs:-
1. That this matter be certified as urgent
2. That the 1st Respondents and/or James Gitau Mukuria do deposit into court as a security the sum of Kshs. 8 Million paid by the Applicant to the 3rd Respondent at the public auction held on 28th day of May 2015.
3. That in the alternative to 1 above the 1st Respondent, her husband James Gitau Mukuria and their immediate family members ,relative, agents and/or servants do immediately vacate and hand over vacant possession of the suit premises being Dagoreti/Waithaka/846 to the Applicant pending the hearing and determination of the substantive suit being HCC ELC NO. 515 of 2015.
4. That the cost of this application and of the suit be awarded.
2. The applicant is seeking the above orders on ground that since it purchased the property at a public auction, it has never enjoyed the same. That it took a loan to purchase the property yet it cannot enjoy the same. It now requires the first respondent or her husband to deposit a sum of Ksh.8,000,000/= as security for costs.
3. The application is opposed by the first respondent based on a replying affidavit sworn on 19th September 2017. The first respondent contends that the applicant’s application is misconceived and not supported by the law. That if the applicant wanted security for costs, it cannot ask the same in the sum which is the value of the auctioned property.
4. I have considered the applicant’s application as well as the opposition thereto by the first respondent. The applicant is seeking security for costs in this miscellaneous file. The application is expressed to be brought under Order 26 Rule 1 of the Civil Procedure Rules. In this miscellaneous application there is nothing which is pending to warrant an order for security for costs. The applicant’s prayers for removal of a caution has been granted in a separate ruling. The applicant is seeking security for costs in the sum of Kshs.8, 000,000/=. Even if there was to be a suit pending in this matter, such costs could not have been in that region.
5. The applicant is seeking an alternative prayer for eviction pending the outcome of ELC 514 of 2015. It will not be appropriate to grant orders of eviction when there are pending proceedings in ELC 514 of 2015 touching on the subject matter which had been purchased by the applicant. I find that the applicant’s application lacks merit. The same is hereby dismissed with costs to the first respondent.
It is so ordered.
Dated, Signed and delivered at Nairobi on this 29th day of January ,2018.
E.O.OBAGA
JUDGE
In the absence of parties who were aware of the time and date of delivery of Ruling.
Court Assistant: Hilda
E.O.OBAGA
JUDGE