[2023] KEELC 16442 (KLR)
The court found that the applicant's grounds for seeking security for costs—namely, the plaintiff's residence in the United States and her history of unsuccessful applications—were insufficient. The judge held that there was no evidence that attempts to execute for costs had been made and failed due to the...
Source-derived case information.
- Citation
- [2023] KEELC 16442 (KLR)
- Parties
- Plaintiff: Esther Kemuma Mogaka; Defendant: Diamond Trust Bank of Kenya Limited; Defendant: Stephen Karanja Kang’ethe t/a Dalali Traders Auctioneers; Defendant: Alyssa Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 29 of 2019
- Procedural Posture
- Interlocutory Application / Ruling on Application for Security for Costs
- Outcome
- application dismissed with costs to the plaintiff
- Judges
- M Sila
- Legal Topics
- Security for Costs, Interlocutory Applications, Costs Awards, Foreign Residency of Party
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Esther Kemuma Mogaka
Plaintiff
Diamond Trust Bank of Kenya Limited
Defendant
Stephen Karanja Kang’ethe t/a Dalali Traders Auctioneers
Defendant
Alyssa Limited
Defendant
Procedural Posture
Interlocutory Application / Ruling on Application for Security for Costs
Legal Issues
- 1 Whether the plaintiff should be ordered to furnish security for costs before the suit is set down for hearing.
- 2 Whether the plaintiff's residence outside Kenya justifies an order for security for costs.
- 3 Whether previous unsuccessful applications by the plaintiff warrant security for costs.
Ratio Decidendi
The court found that the applicant's grounds for seeking security for costs—namely, the plaintiff's residence in the United States and her history of unsuccessful applications—were insufficient. The judge held that there was no evidence that attempts to execute for costs had been made and failed due to the plaintiff's foreign residence. The mere fact of living abroad does not automatically justify an order for security for costs. Furthermore, the court criticized the proliferation of interlocutory applications that delay the resolution of the main suit. Accordingly, the application for security for costs was dismissed with costs to the plaintiff.
Court Disposition
application dismissed with costs to the plaintiff
Orders
- The application dated 5 October 2022 is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
27 paragraphs
Mogaka v Diamond Trust Bank of Kenya Limited & 2 others (Environment & Land Case 29 of 2019) [2023] KEELC 16442 (KLR) (23 March 2023) (Ruling)
Neutral citation: [2023] KEELC 16442 (KLR)
Republic of Kenya
In the Environment and Land Court at Kisii
Environment & Land Case 29 of 2019
M Sila, J
March 23, 2023
Between
Esther Kemuma Mogaka
Plaintiff
and
Diamond Trust Bank of Kenya Limited
1st Defendant
Stephen Karanja Kang’ethe t/a Dalali Traders Auctioneers
2nd Defendant
Alyssa Limited
3rd Defendant
Ruling
1. The application before me is that dated 5 October 2022 filed by the 1st defendant. It seeks orders that the plaintiff do furnish security for costs before the suit is set down for hearing. The application is based on grounds that since the institution of this suit, apart from filing frivolous applications, the plaintiff has not been keen to prosecute the case; that the plaintiff had earlier filed the suit Kisii ELC No. 264 of 2017 together with an interlocutory application which was dismissed with costs; that she then filed a notice of appeal out of time and the same was struck out after the applicant filed the case Kisumu Civil Application No. 45 of 2017 before the Court of Appeal; that the plaintiff then unsuccessfully filed Civil Application E153 of 2021 before the Court of Appeal for extension of time to file appeal out of time which was dismissed with costs; that the plaintiff filed another application, No. E147 of 2021, which she withdrew with costs being awarded to the applicant; that the plaintiff currently resides in the United States of America and the applicant does not know if she has property in Kenya that will be sufficient to pay for the costs of the case should the case be decided in favour of the applicant; that the plaintiff should thus be ordered to deposit security for costs. The application is supported by the affidavit of Faith Ndonga who has more or less elaborated on the grounds upon which this application is based and which I have already set out above. I see no need of repeating them.
2. The plaintiff opposed the motion by filing a replying affidavit. She avers that the court will handle the issue of costs upon determination of the suit, and one cannot be asked to provide for costs for filing applications and because it is not known where one’s assets are located. She believes that her right to access justice should not be curtailed by imposing restrictions to furnish costs in anticipation that she will lose the case.
3. Counsel relied on the affidavits filed and I have considered them.
4. I find it strange that the applicant complains that this suit has not proceeded because the plaintiff has been filing one application after another, yet this is one interlocutory application that the applicant also wants this court to entertain instead of concentrating on hearing the case on merits.
5. Be that as it may, the application is more or less based on the grounds that the plaintiff had filed numerous earlier applications that were dismissed and that she resides in the United States of America. First, the mere fact that the plaintiff resides in the United States of America, by itself, is no reason to ask her to deposit security for costs. On the other ground, it does indeed appear that the plaintiff has filed some applications which have been dismissed but I have no evidence that attempts to obtain costs have been futile. I have no evidence before me that there have been attempts at executing for costs which have been unsuccessful and hampered because the plaintiff resides out of the jurisdiction of this court.
6. This to me is another application that simply leads to the delay in conclusion of this case and I do not intend to waste too much time on it. Parties need to stop filing application after application that is not aimed at leading towards the resolution of this case.
7. For the above reasons, this application is dismissed with costs to the plaintiff.
8. Orders accordingly.
DATED AND DELIVERED THIS 23 DAY OF MARCH 2023JUSTICE MUNYAO SILAJUDGE, ENVIRONMENT AND LAND COURTAT KISII