[2002] KEHC 586 (KLR)
The court found that the plaintiff is a foreign company registered outside the jurisdiction and failed to provide evidence of owning property in Kenya, despite being given an opportunity to do so. The court determined that the defendant's fears of being unable to recover costs were justified. Consequently, the court...
Source-derived case information.
- Citation
- [2002] KEHC 586 (KLR)
- Parties
- Plaintiff: Rimpex S.A.R.L.; Defendant: Hapa Enterprises; Third Party: K.K. Guards Group of Companies
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 221 of 1997
- Procedural Posture
- Civil Suit / Ruling on Application for Security for Costs
- Outcome
- Application for security for costs allowed in part.
- Legal Topics
- Security for Costs, Foreign Company Litigation, Burden of Proof on Assets
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rimpex S.A.R.L.
Plaintiff
Hapa Enterprises
Defendant
K.K. Guards Group of Companies
Third Party
Procedural Posture
Civil Suit / Ruling on Application for Security for Costs
Legal Issues
- 1 Whether the plaintiff, being a foreign company with no proven assets in Kenya, should be ordered to furnish security for the defendant's costs.
- 2 Whether the amount sought as security for costs is reasonable.
Ratio Decidendi
The court found that the plaintiff is a foreign company registered outside the jurisdiction and failed to provide evidence of owning property in Kenya, despite being given an opportunity to do so. The court determined that the defendant's fears of being unable to recover costs were justified. Consequently, the court exercised its discretion to order the plaintiff to furnish security for the defendant's costs. However, the court found the amount sought by the defendant excessive and reduced it to KSh.250,000/-, to be furnished within 15 days. The court also awarded the costs of the application to the defendant.
Court Disposition
Application for security for costs allowed in part.
Orders
- Plaintiff to furnish security for the defendant's costs in the sum of KSh.250,000/- within 15 days.
- Costs of the application awarded to the defendant.
Full Case Text
Judgment text and source record
17 paragraphs
DRAFT
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 221 OF 1997
RIMPEX S.A.R.L. ……………………………….…………… PLAINTIFF
VERSUS
HAPA ENTERPRISES …………………………………….. DEFENDANT
AND
K.K. GURADS GROUP OF COMPANIES ………………….. 3RD PARTY
RULING
Chamber Summons dated 18th October 2002 and filed into the court on 24th October 2002 is seeking that the Plaintiff do furnish security for the whole of the costs of the Defendant in the tune of Shs.300,000/-. It is also seeking costs of the application to be provided. The grounds of the same application are three and these are first that the Plaintiff is a foreign company with no attachable assets within the jurisdiction of the court, secondly that the Defendant is unlikely to recover its costs in the event the suit is dismissed since the plaintiff and its directors are foreigners and are not likely to be reached to facilitate execution. The application is supported by an affidavit of David Horsey. The Respondent/Plaintiff opposed the application and filed replying affidavit sworn by Rumongi Longin a director of the Plaintiff company. In that affidavit the Respondent admits that it is registered in the Republic of Rwanda, but that it has several business interest in Nairobi and owns a property Plot No. LR209/10548/58 situated at South C Mugoya Nairobi. It also says that its directors have a sister company registered in Kenya.
I did consider the application and allowed the Respondent to file particulars showing ownership of plot number LR 209/10548/58 situated at South C Mugoya Nairobi but the Respondent has failed to file the same and has not filed any supplementary affidavit as he was allowed to do. On the contrary the applicant has filed supplementary affidavit which clearly shows that the piece of land the Respondent claims to belong to it does not belong to it at all. Thus the Respondent has told the court a lie and does not deserve any sympathies of the court.
The net result of the above is the respondent company is registered outside the court’s jurisdiction; the Respondent company has no property in Kenya or at least has not proved that it has any. With that being the case, fear of the applicant are founded. This application succeeds but I feel the amount of KSh.300,000/- is on the higher side and I will order the Respondent to furnish security for the costs of Defendant in the sum of KSh.250,000/-. The same security to be furnish within 15 days of the date hereof. Costs of the application to the applicant. Orders accordingly.
Dated and Delivered at Mombasa this 26th Day of November 2002.
J.W. ONYANGO OTIENO
JUDGE