[2023] KEELC 664 (KLR)

Shariff v Nyamawi & 3 others (Environment & Land Case 29 of 2022) [2023] KEELC 664 (KLR) (8 February 2023) (Ruling)

Neutral citation: [2023] KEELC 664 (KLR)

Republic of Kenya

In the Environment and Land Court at Malindi

Environment & Land Case 29 of 2022

EK Makori, J

February 8, 2023

Between

Liza Nasardin Shariff

Plaintiff

and

Ibrahim Jumbale Nyamawi

1st Defendant

Kamoti & Co Advocates

2nd Defendant

Kilifi Land Registrar

3rd Defendant

Pink Homes Limited

4th Defendant

Ruling

1. The 2nd Defendant's application dated 3rd June 2022 seeks that the Plaintiff be ordered to furnish security for the 2nd Defendant's costs that may arise in this suit with attendant costs.

2. The motion is opposed – there is a replying affidavit deposed in Calgary, Alberta Canada by the Plaintiff/Respondent dated 25th July 2022.

3. At the direction of this court, parties were to file written submissions on the present application. I can see the 2nd Defendant did. The Plaintiff/Applicant and the other Defendants did not.

4. The 2nd Defendant proposes that the Plaintiff be asked to deposit Kshs. 750,000/= in an interest-earning account in the joint names of the Counsel for the Plaintiff and Counsel for the 2nd Defendant within such period of time as the court may deem just and expedient. The application is made on the grounds that that the Plaintiff resides and works for gain in Canada outside the jurisdiction of this court and she has no known assets in Kenya to which the 2nd Defendant may have recourse to recover costs of the suit if the costs of the suit are awarded to it.

5. 2nd Defendant says that it has a bonafide defence to the Plaintiff's suit. The Court of Appeal has in Shah & 2 Others v Shah & 2 Others [1982] eKLR laid down the general rule in making provision for security for costs as follows: -“The general rule is that security is normally required from Plaintiffs resident outside the jurisdiction ...”

6. The 2nd Defendant further contends that it is not in dispute that the Plaintiff is a resident outside the jurisdiction of the Court. In paragraph 1 of the plaint, in the verifying affidavit accompanying the plaint and in the replying affidavit filed by the Plaintiff on 12th September 2022 the Plaintiff states that she resides in Alberta, Canada.

7. The 2nd Defendant has in the affidavit of Vincent Omollo sworn on 3rd June 2022 in support of the motion stated that the Plaintiff has no known assets in Kenya to which the 2nd Defendant can have recourse to recover the costs of the suit if the costs of the suit are awarded to the 2nd Defendant. The Plaintiff has not controverted that averment.

8. The 2nd Defendant has quoted the case of Alice Aloo Betty Were Thompson v Said Mohamed Said & Others[2014] eKLR where the Court stated that: -“... this Court cannot be blind to the fact that the Plaintiff has not disclosed her assets or bank accounts. She merely stated that she had other properties other than the subject property but did not provide any proof. A lot of hardship could be caused to the 2nd Defendant to trace her whereabouts in UK if she was to lose this case. The Court does observe that she did not file an Affidavit of Means which could have assisted this Court arrive at a just decision in this matter. The Court therefore finds itself persuaded by the 2nd Defendant's submissions that in the absence of any proof of assets held by the Plaintiff.. .. this Court finds that this is a suitable case where the Court should exercise its discretion to order the Plaintiff to deposit security of costs"

9. The 2nd Defendant further submits that in the case of Shah & 2 Others V Shah & Others (Supra) the Court of Appeal (per Law J.A.) stated that the test on an application for security for costs is not whether the Plaintiff has established a prima facie case but whether the Defendant has shown a bonafide defence.

10. The 2nd Defendant avers that it has shown beyond peradventure that it has a bona fide defence to the Plaintiff's suit. The Plaintiff alleges that the 2nd Defendant acted fraudulently by entering appearance for the Plaintiff and thereafter filing fraudulent pleadings for the Plaintif the Civil Case No. 169 of 2010 without the knowledge, consent or instructions from the Plaintiff. The 2nd Defendant has stated that it never acted for this Plaintiff in Civil Case No. 169 of 2010. The 2nd Defendant has stated that it was instructed and did act for the parties who were sued in High Court Civil cases numbers 167 and 172 of 2010 (O.S.) which 2 cases had been consolidated with civil suits Nos. 168, 169, 170 and 171 of 2020 the same is annexed. The Plaintiff has failed to exhibit the alleged fraud in Civil Case No. 169 of 2010.

11. The 2nd Defendant concludes that the amount of Kshs 750,000/- is reasonable and should be ordered as security for its costs.

12. Plaintiff states that the application is an abuse of the court process and a waste of judicial time. The 2nd Defendant does not deny representation in the adverse possession claim which was marred with illegalities and misrepresentation which have caused her irreparable damages leading to the loss of her property that the 2nd Defendant should be held to account for professional misconduct and breach of duty and integrity.

13. The 2nd Defendant does not deny that its address appears in the pleadings and that it acted fraudulently as evidenced by the court proceedings.

14. The assumption inferred by the application to deposit security will mean that she already lost her case without a hearing.

15. The Plaintiff contends that she has a strong case, and is ready to abide by the conditions to be set by the court and the outcome of the case that she has relatives and an estate in Kenya.

16. The issue that falls for determination is whether at this stage, the court should order for security for costs in favour of the 2nd Defendant as against the Plaintiff.

17. I have considered the parties' averments and the authorities cited by the 2nd Defendant, as well as the parties' pleadings in this matter in general. The principles to consider when deciding on imposition of security for costs are as stated in the case of Aggrey Shivona v Standard Group Plc [2020] eKLR where Njuguna J. quoting several authorities indicated as follows: -“The rationale for security for costs was discussed in the case ofGatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR as follows;“The principles applicable in an application for security for costs are clearly enunciated in a number of cases but to cite a few Lalji Ganji Nathoo v Nathoo Vassanje [1960] EA, 315, Boor Mohammed Abdulla v Reinchodbhal J. Patel & Another [1962], Musera & another v Stallion Insurance Company Limited 2005, 1 KLR 431, that of Kearly Development v Tarmac Construction [1995] 3 ALL ER 534 and ocean view Beach Hotel Limited v Salim Sultan Molio & others [2012] eKLRThe test in an application for security for costs is not whether the Plaintiff has established a prima facie case but whether the Defendant has shown a bonafide defence. This was the holding in the case of Shah v Sheti Civil Appeal No.34 of 1981. The same principles were espoused in the case of Jayesh Hasmukh Shah v Narin Haira & another [2015] eKLR in which the court held;“It is now settled Law the order for security for costs is a discretionary one as long as that discretion is exercised reasonably, and having regard to the circumstances of each case. Such factors as absence of known assets in the Country, absence of an office within the jurisdiction of the court, inability to pay costs; the general financial standing or wellness of the plaintiff; the bonafides of the plaintiff’s claim, or any other relevant circumstances or conduct of the plaintiff or defendant may be taken into account”.

18. The 2nd Defendant points out that the Plaintiff is not a regular Kenyan resident; she lives in Alberta, Canada, and has not disclosed whether she owns any property that can be attached to meet the 2nd Defendant's costs if the court rules in its favour. The burden was on the 2nd Defendant to prove that by virtue of the Plaintiff’s stay in Canada, it will be totally impossible to recover the costs from her if the outcome of the case tilts in its favour. Nothing has been placed before this court to show that the Plaintiff has nothing attachable. A mere imploration that the Plaintiff lives outside the borders of Kenya and has no property here is not enough.

19. The fact that the Plaintiff lives in Canada is not disputed. She admits herself in her averments and pleadings. On whether she has attachable properties in Kenya, she says she is a Kenyan who has relations here and will abide by the outcome of the case. It is true she has not provided any affidavit of means to show that she has properties in Kenya, but has undertaken to abide by the outcome of the suit.

20. The 2nd Defendant also contends it has a bonafide defence. The fraud attributed to it is unimportant. Its manner of representation in the suits which are the triggers of this suit has been alluded to in its averment deposed by Vincent Omollo – Counsel. Its representation was never fraudulent. The Notice of Appointment of Advocate discloses the instructing parties. It is not in the nature and falsehood as pleaded by the Plaintiff.

21. The Plaintiff has levelled several allegations of fraud in the plaint and her averments in the style the primary suits were conducted leading to total loss of her property. Those allegations have been answered in a rejoinder by the 2nd Defendant and specifically denied.

22. Normally, allegations of fraud cannot be resolved summarily. Furthermore, the defence will require the same treatment. It requests for a hearing and examination of the evidence and allegations raised during the cross-examination to test the veracity of those allegations vis a vis the defence mounted. Besides, it requires that party needs to be heard without undue hardships placed on the way of a hearing in accordance with Art.50 (1) of the Constitution.

23. Given what we have, this is not one of those cases where security for costs should be provided. As a result, the instant application is dismissed with costs to the Plaintiff.

DATED, SIGNED, AND DELIVERED AT MALINDI VIRTUALLY IN OPEN COURT ON THIS 8TH DAY OF FEBRUARY 2023. E. K. MAKORIJUDGEIn the Presence of: -Mr. Maina for the RespondentMr. Mwakisha for the Defendant