James Finlay Kenya Limited v Anganga & 1043 others; John Khaminwa t/a Khaminwa & Company Advocates & another (Applicant) (Petition E133 of 2022 & Miscellaneous Application E167 & E087 of 2023 (Consolidated)) [2024] KEELRC 1446 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Advocates for the Respondents can invoke Order 26, Order 40 and Order 51 of the Civil Procedure Rules, 2010 in a constitutional petition governed by the Mutunga Rules
- 2.Whether security for costs and a temporary injunction should be granted against the Petitioner at the instance of the Advocates
- 3.Whether the Petitioner is divesting its assets in Kenya so as to defeat an order for costs
Key legal issues
#Applicability of Civil Procedure Rules to a constitutional petition
The applicable procedural law is the Mutunga Rules, not the Civil Procedure Rules, and it was unclear why the Applicants invoked civil procedure provisions
The matter is a constitutional petition under the 2013 Rules; the Court found no justification for invoking Orders 5, 40 and 51 and Sections 3A and 63(e) of the Civil Procedure Act because what is before the Court is not a civil suit. Costs in such petitions are regulated exclusively by Rule 26 of the Mutunga Rules.
Whether security for costs should be granted
No; the Applicants did not meet the standards in Westmont Holdings v Central Bank of Kenya, and access to justice would be impeded
The Court relied on the Supreme Court decision in Westmont Holdings, which underscored the primacy of access to justice. The Petition was genuine and arguable, involved matters of public importance, and there was no proof the Petitioner would not honour final orders on costs or that it was impecunious.
Whether the Advocates, who are not parties, can obtain the orders sought
Doubtful; security for costs and injunctions cannot be granted in the names of Advocates who are not parties
Party to Party Bills of Costs are presented in the names of parties, while Advocate to Client Bills are in the names of Advocates and clients. The 1,044 Respondents were not named as Applicants, so the Court doubted orders could issue in the Advocates' names.
Whether the Petitioner is divesting assets in Kenya to defeat costs
No evidence established that the Petitioner is relocating or placing itself beyond the jurisdiction
The exhibited document showed the Petitioner would retain its Saosa tea extraction facility and Mombasa packing operations, continues to invest in Kenya, and stated the sale would not affect pending litigation in Scotland and Kenya.
Legal principles established
#- In considering security for costs in constitutional litigation, the principle of access to justice is primary
- Costs in constitutional petitions are governed by Rule 26 of the Mutunga Rules, at the discretion of the Court
Court orders
#- 1.The Applications are declined.
- 2.Costs in the Petition.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Constitution of Kenya [Protection of Rights and Fundamental Freedoms] Practice and Procedure Rules, 2013 (Mutunga Rules) - petition jurisdiction
Relief refused
#Security for costs of Kshs. 1 million or sufficient security to meet the Applicants' costs pending taxation
Access to justice is primary in constitutional litigation and the Applicants failed to meet the standards in Westmont Holdings; the Petitioner is not shown to be divesting or placing itself beyond the Court's jurisdiction
Temporary injunction restraining the Petitioner from transferring ownership of any of its assets
No evidence that the Petitioner is closing down its business or divesting in Kenya
Costs
Costs in the Petition.
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.
In considering security for costs in constitutional litigation, the principle of access to justice is primary.
Before the Court is not a Civil Suit.
They are not Parties, and it is doubtful that orders of security for costs and injunction, can be granted in their names, as sought.
The Applications are declined.
Costs in the Petition.
Issues in the judgment
#The judgment refers to Order 26 of the Civil Procedure Rules in the Applicants' submissions but later to Order 5 Rules 21-27 as the provisions invoked, without reconciliation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Finlay Kenya Limited v Anganga & 1043 others; John Khaminwa t/a Khaminwa & Company Advocates & another (Applicant) (Petition E133 of 2022 & Miscellaneous Application E167 & E087 of 2023 (Consolidated)) [2024] KEELRC 1446 (KLR)", Case Analysis (2024). Miscellaneous Applications within the Petition (petition number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1446/eng@2024-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.