Nzioka & 2 others (Suing on Their Behalf and as the Officials of Ngelani Pioneer Society) v Ziba Trustees Limited & another (Environment & Land Case 37 of 2018) [2025] KEELC 3431 (KLR)
The bottom line
#A Kenyan court refused to make land plaintiffs deposit KShs 12 million as security for costs, saying the defendant proved nothing about their ability to pay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an order for security for costs can issue against the Plaintiffs
- 2.Whether the Plaintiffs should be granted leave to amend the Originating Summons dated 1st March 2018
Key legal issues
#Whether security for costs should issue against the Plaintiffs
Application dismissed; the 2nd Defendant failed to prove the Plaintiffs' inability to pay costs and it would be unfair to order security before trial
Order 26 Rule 1 confers a discretion on the court. The applicant bore the evidential burden of proving the plaintiffs would be unable to pay costs if unsuccessful. The applicant made only a general assertion based on absence of known assets, which did not discharge that burden. On the bona fide defence test, the veracity of the defence can only be established by evidence at trial, so it would be unfair to order the plaintiffs to deposit security at this stage.
Whether leave should be granted to amend the Originating Summons
Application dismissed; no draft amended pleading was annexed and the proposed amendment introduced new facts contravening Order 8
Although the discretion to allow amendments is wide, the plaintiffs sought to introduce a boundary and details survey report of July 2024 showing subdivision of the suit property into 518 plots and construction of 138 permanent structures after interim orders of 2018. Developments made despite court orders cannot be relied on as a change of facts, and no proposed Amended Originating Summons was supplied for the court to peruse.
Legal principles established
#- The test in an application for security for costs is not whether the plaintiff has a prima facie case but whether the defendant has shown a bona fide defence
- An applicant for security for costs must prove, not merely allege, that the respondent would be unable to pay costs due to poverty
- Poverty is not a sufficient ground for an order for security for costs; a poor litigant must be permitted to bring proceedings without hindrance
- Amendments to pleadings should be freely allowed at any stage provided they do not cause prejudice or injustice not compensable in costs
Court orders
#- 1.The application dated 2nd September 2024 seeking security for costs of Kshs. 12,000,000.00 is dismissed; costs to abide the outcome of the suit
- 2.The application dated 22nd November 2024 seeking leave to amend the Originating Summons is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3A Civil Procedure Act; Order 26 Rule 1 and Order 8 Rules 3 & 5 Civil Procedure Rules, 2010
Relief refused
#Security for costs of Kshs. 12,000,000.00 and striking out of the suit in default
Applicant made only a general allegation that Plaintiffs have no known assets and did not discharge its evidential burden of proving inability to pay costs
Leave to amend the Originating Summons dated 1st March 2018
No draft amended Originating Summons was annexed and the proposed introduction of a 2024 boundary and details survey would introduce new facts developed despite interim court orders, contravening Order 8 of the Civil Procedure Rules
Costs
First application: costs shall abide the outcome of the suit. Second application: dismissed with costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It would be unfair in the circumstances of this case, to order the Plaintifi to deposit the sought for, security for costs.
the Applicant has just made a general statement that the Respondent may not be able to settle the costs in the event that the do not succeed in their suit because they have no known assets. To that extent, it did not discharge its evidential burden.
I find that this application is not merited and is dismissed with costs.
In view of the foregoing, I am of the considered view that the application is not merited and the same is hereby dismissed. The costs shall abide the outcome of the suit.
Issues in the judgment
#The judgment refers to the security-for-costs applicant variously as '2nd Defendant/Applicant' and '2nd Respondent/Applicant', an internal inconsistency
Paragraph numbering is irregular, including a paragraph numbered '265.'
The case name for the leading security-for-costs authority is inconsistently rendered ('Shah and others vs Manurama Limited' and 'Jayesh Hasmukh Shah Vs Narin Haira')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nzioka & 2 others (Suing on Their Behalf and as the Officials of Ngelani Pioneer Society) v Ziba Trustees Limited & another (Environment & Land Case 37 of 2018) [2025] KEELC 3431 (KLR)", Case Analysis (2025). ELC Case of 2018 (Originating Summons dated 1st March 2018), Machakos. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3431/eng@2025-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.