KENYA Law and Practice Contributed by: Ahmednasir Abdullahi, Asli Osman, Peter Muchoki and Elizabeth Wangui Mungai, Ahmednasir Abdullahi Advocates LLP
4.5 Applications for Security for Defendant’s Costs A defendant can apply for an order requiring the plain- tiff to provide security for the defendant’s costs of the proceedings. Kenyan law safeguards defendants against frivolous litigation through security for costs under Order 26 of the Civil Procedure Rules. Courts often require defendants to provide evidence of the plaintiff’s inability to meet costs or risk of flight from the jurisdiction being a bona fide concern and not mere speculation. In some cases, the amount ordered may be reduced to an affordable sum to allow the case to proceed. 4.6 Costs of Interim Applications/Motions Section 27 of the Civil Procedure Act states that costs follow the event unless the court directs otherwise. This means that the losing party in an interim applica- tion generally bears the costs. Kenyan courts retain wide discretion and often order that costs of interim applications be “in the cause” meaning that the issue of costs will be determined with the final outcome of the case. This approach reflects judicial pragmatism: interim decisions are pro- visional, and their fairness is best assessed alongside the final outcome. 4.7 Application/Motion Timeframe The timeframe for hearing and determining applica- tions in Kenya varies significantly. Routine applica- tions may take weeks or months to be listed due to court backlogs, while urgent matters can be certified as such and dealt with expeditiously. A party can apply to have its application certified as urgent and dealt with on a priority basis. An applicant must demonstrate imminent harm or prejudice that cannot be compensated later. Once certified, urgent applications may be heard ex parte on the same day, with interim orders being issued.
Finally, Kenyan courts also recognise judgment on admission under Order 13 Rule 2 of the Civil Proce- dure Rules. This mechanism allows the court to enter judgment at any stage of proceedings where a party has made clear and unequivocal admissions of fact, either in pleadings or otherwise. 4.3 Dispositive Motions A summary judgment allows a case to be concluded without a full trial under Order 36 of the Civil Proce- dure Rules. This applies where the plaintiff shows that the defendant has no real defence, especially in liqui- dated claims or recovery of land. Another mechanism is the motion to strike out plead- ings under Order 2 Rule 15. This allows the court to remove pleadings that are frivolous, scandalous, vex- atious, or an abuse of process. Courts may also dismiss cases through dismissal for want of prosecution under Order 17 Rule 2, where no action is taken in a case for at least one year. Courts have interpreted this position, stating that dismissal depends on whether or not the delay is inordinate, inexcusable, and prejudicial to the defendant. Finally, courts may dispose of suits on grounds that a claim is premature where statutory or contractual pre- conditions have not been met. For example, where parties are required by law to first pursue remedies before a specialised tribunal, a claim filed in the High Court may be struck out for failure to exhaust such remedies. 4.4 Requirements for Interested Parties to Join a Lawsuit Parties who are not originally named as plaintiffs or defendants may join in ongoing litigation through joinder of parties, which can occur either at the time the claim is filed or subsequently, by way of a formal application supported by an affidavit. First, the applicant must demonstrate a clearly iden- tifiable personal interest in the matter. Second, the court must consider the prejudice that the applicant is likely to suffer in the event of non-joinder. Third, the applicant must set out the case they intend to present and show its relevance to the proceedings.
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