[2004] KEHC 1898 (KLR)
The court found that the defendant failed to provide sufficient evidence to support the quantum of security sought, including the alleged market value of the land and the sum of costs. The court emphasized that lack of substantial means should not bar parties from accessing justice, especially where plaintiffs are...
Source-derived case information.
- Citation
- [2004] KEHC 1898 (KLR)
- Parties
- Applicant: Kazungu Kalama; Applicant: Justice Chigiri; Applicant: Chuma Randu; Applicant: Mgani Karani (suing for & on behalf of 166 others); Respondent: Mainland Properties Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 96 of 2003
- Procedural Posture
- Civil Suit / Ruling on Application for Security for Costs
- Outcome
- application dismissed
- Legal Topics
- Security for Costs, Adverse Possession, Court Discretion, Access to Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kazungu Kalama
Applicant
Justice Chigiri
Applicant
Chuma Randu
Applicant
Mgani Karani (suing for & on behalf of 166 others)
Applicant
Mainland Properties Ltd
Respondent
Procedural Posture
Civil Suit / Ruling on Application for Security for Costs
Legal Issues
- 1 Whether the plaintiffs should be ordered to provide security for costs as sought by the defendant.
- 2 Whether lack of substantial means or income can bar plaintiffs from accessing the court.
- 3 Whether the defendant has provided sufficient evidence to justify the quantum of security sought.
Ratio Decidendi
The court found that the defendant failed to provide sufficient evidence to support the quantum of security sought, including the alleged market value of the land and the sum of costs. The court emphasized that lack of substantial means should not bar parties from accessing justice, especially where plaintiffs are residents of Kenya and can be traced. The dispute raises significant issues affecting many claimants, and the court should not use technicalities to deny them a hearing. The application for security for costs was therefore dismissed, and the plaintiffs were allowed to proceed with their suit.
Court Disposition
application dismissed
Orders
- The application for security for costs is dismissed with costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT O FKENYA AT MOMBASA CIVIL SUIT NO.96 (O.S.) OF 2003
IN THE MATTER OF: PARCEL NO.828(ORIG.372/2 SEC.II M.N. MSA)
A N D
IN THE MATTER OF: APPLICATION FOR DECLARTION THAT THE APPLICANTS/PLAINTIFFS HAVE OBTAINED OWNERSHIP OF 341 ACRES (THREE HUNDED FORTY-ONE ACRES) OF THE SAID LAND BY WAY OF ADVERSE POSSESSION
B E T W E E N
1. KAZUNGU KALAMA
2. JUSTICE CHIGIRI
3. CHUMA RANDU
4. MGANI KARANI (suing for & on behalf of 166 others)……………………………………..PLAINTIFFS/APPLICANTS
A N D
MAINLAND PROPERTIES LTD…………………DEFENDANT/RESPONDENT
R U L I N G
The Defendant a limited liability company filed this chamber Summons under Order XXV Civil Procedure Code seeking orders for security for costs in the sum of Kshs.5,000,000/- within 30 days of the order and that in default the Plaintiffs’ suit be struck off.
The supporting affidavit shows that the land in dispute measures 341 acres in total area, that the Plaintiffs are unknown to the Defendant and are not persons of substantial means. The land in dispute has market value of Kshs.289,850,000/= and that expected fee amounts to Kshs.5 Million to the Advocates and that the Plaintiffs’ suit has no chance of success.It is also sham, that only a few Plaintiffs occupy a portion of land about 5% of the total area.
I have perused the affidavits and submissions of counsel. It appears the Defendant has adopted the stand that is oppressive to the Plaintiffs. First of all the sum of costs is not supported with evidence; the market value is not also supported.
A party cannot be kept out of court because he has no substantial income. The Plaintiffs herein claim to be residents in Kenya and therefore they can be traced. In the case of HOMBE SAWMILLS LTD vs M.W. INVESTMENTS LTD & ANOR., Hon. Justice R.S.C. Omollo, as he then was, said:
“Only in exceptional circumstan ces will a Plaintiff be ordered to provide security for costs where such Plaintiff is resident in Kenya”
The provisions of Order 25(1) which is invoked herein gives court discretion to order security for the whole or any of the costs of any Defendant.
Rule 2 thereof implies that the court shall consider the defence and the grounds set out in the affidavit.
I have considered all the issues raised by the Defendant in an effort to show that this case is a non-starter. My observation is that the dispute is such that the courts have to rise up to the occasion and make a decisive decision here.These disputes are growing and a final decision should be made to enlight the parties on their rights. The suit raises important issues which affect several claimants. They cannot be kept out of court on technicalities and are entitled to be heard.
For these reasons I do not make any order on costs. Application is dismissed with costs.
Dated this 30th day of July, 2004.
JOYCE KHAMINWA
J U D G E
30/7/04
Khaminwa, J.
Mr. Chege – Court Clerk
Mr. Okongo – for Defendants
Mr. Maboza – for Plaintiffs
Ruling read in their presence.