[2007] KEHC 2709 (KLR)
The court found that the 2nd and 3rd defendants had established sufficient grounds for the grant of security for costs, as the plaintiff is a foreign company with no known assets in Kenya and did not contest the application. The absence of opposition or appearance by the plaintiff reinforced the defendants'...
Source-derived case information.
- Citation
- [2007] KEHC 2709 (KLR)
- Parties
- Plaintiff: Tanganyika Investments Oil & Transport Company Ltd; Defendant: Mobil Oil Kenya Ltd.; Defendant: 2nd and 3rd Defendants (names not specified)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 423 of 2005
- Procedural Posture
- Civil Case / Ruling on Application for Security for Costs
- Outcome
- Application for security for costs granted. Orders issued as sought by the 2nd and 3rd defendants.
- Legal Topics
- Security for Costs, Foreign Company Litigation, Costs Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tanganyika Investments Oil & Transport Company Ltd
Plaintiff
Mobil Oil Kenya Ltd.
Defendant
2nd and 3rd Defendants (names not specified)
Defendant
Procedural Posture
Civil Case / Ruling on Application for Security for Costs
Legal Issues
- 1 Whether the 2nd and 3rd defendants are entitled to security for costs from the plaintiff, a foreign company with no known assets in Kenya.
- 2 Whether the plaintiff should provide security for costs as a condition for the suit to proceed.
Ratio Decidendi
The court found that the 2nd and 3rd defendants had established sufficient grounds for the grant of security for costs, as the plaintiff is a foreign company with no known assets in Kenya and did not contest the application. The absence of opposition or appearance by the plaintiff reinforced the defendants' entitlement to security for costs. The court exercised its discretion to order the plaintiff to provide security in the specified amount, failing which the suit could be dismissed as against the 2nd and 3rd defendants. The court also stayed further proceedings pending compliance and awarded costs of the application to the 2nd and 3rd defendants.
Court Disposition
Application for security for costs granted. Orders issued as sought by the 2nd and 3rd defendants.
Orders
- The plaintiff shall provide security for the 2nd and 3rd defendants’ costs in the sum of Kshs.8,112,180.00 within thirty (30) days of service of this order.
- Such security shall be in the form of a performance bond from a reputable financial institution or a cash deposit in the joint names of the advocates for the plaintiff and the 2nd and 3rd defendants.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 423 of 2005
TANGANYIKA INVESTMENTS OIL & TRANSPORT COMPANY LTD...............PLAINTIFF
VERSUS
MOBIL OIL KENYA LTD. & 6 OTHERS ……………….......................................DEFENDANT
R U L I N G
Before me is an application by the 2nd and 3rd defendants primarily for security for costs expressed to be sought, under Order XXV Rules 1, 5 (1), 6 and 7 (1) of the Civil Procedure Rules Sections 3 and 3A of the Civil Procedure Act and all enabling provisions of the law. The application which is supported by an affidavit sworn by one Stephen Kiiyuru Mbugua, the legal officer of the 1st defendant is based on the grounds that the plaintiff is a limited liability company incorporated in the Republic of Tanzania and that it has no known assets within the jurisdiction of this court.
The plaintiff did not file grounds of opposition or a replying affidavit. There was also no appearance for it at the hearing of the application on 20. 3.2007 despite service of the application having been made upon its advocates and in the event the application was heard ex parte.
On the basis of the evidence presented on behalf of the 2nd and 3rd defendants in this matter, I am satisfied that they are entitled to the orders sought. Accordingly, I make the following orders:-
(1). The plaintiff do provide security for the 2nd and 3rd defendants’ costs of this suit in the sum of Kshs.8,112,180. 00 within thirty (30) days of service of this order.
(2) Such security be in the form of a performance bond provided by a reputable financial institution or a cash deposit in the joint names of the advocates for the plaintiff and the 2nd and 3rd defendants.
(3) If the said security for costs is not given within the period stipulated above, the 2nd and 3rd defendants are at liberty to apply for the dismissal of the suit as against them.
(4) In the interim all further proceedings of this suit are stayed.
(5) The plaintiff do pay the 2nd and 3rd defendants’ costs of this application.
Orders accordingly.
DATEDand DELIVERED at NAIROBI this 8th day of May 2007.
F. AZANGALALA
JUDGE
Read in the presence of:- Adipo holding brief for Anim for the 2nd and 3rd defendants/applicants.
F. AZANGALALA
JUDGE