Defendants are not obliged to meet every claim as filed. Where a suit appears designed to pressure rather than to vindicate a right, Kenyan courts have two established shields: an order for security for costs and the court’s control of abuse of process. Both are discretionary, both are applied cautiously, and both can change the commercial arithmetic of a dispute. This article explains how they work in practice.
Quick answer
Security for costs is an order requiring a plaintiff to provide money or other security so that the defendant can recover costs if the claim fails. The court may make the order where the plaintiff is ordinarily resident outside Kenya or in other circumstances where security is justified. Abuse of process is a separate power to strike out or control proceedings that are vexatious, scandalous or an improper use of the court. Both applications must be evidenced and proportionate.
What security for costs is
If a claim fails, the defendant is usually entitled to costs. Where there is reason to doubt that the plaintiff could pay those costs, the court may require the plaintiff to provide security before the case continues. If the security is not provided, the claim may be stayed or dismissed. The purpose is protective, not punitive: it guards the defendant against an unenforceable costs order.
Security can take different forms, including a payment into court, a bank guarantee or another instrument acceptable to the court. The amount is fixed by the court and may be reviewed if the scope of the case or the costs estimate changes.
When the court may order security
The rules and the court’s practice allow security to be ordered in defined circumstances. The most common is that the plaintiff is ordinarily resident outside Kenya, but the court may also act where the facts show a real risk that a costs order would be unenforceable. A corporate plaintiff that is unable to meet costs, or a plaintiff whose assets are not within reach, may face an application.
The application is evidential. The defendant should show the basis for the order, the likely costs and the practical difficulty of recovery. A foreign plaintiff may answer by pointing to assets in Kenya, to a parent guarantee or to the strength and good faith of the claim. Blanket assertions that a foreign plaintiff will not pay are not enough.
The application: evidence and procedure
- Act early, before the case has advanced far, and check whether the rules require the application at a particular stage.
- Evidence the plaintiff’s residence, assets, litigation history and ability to satisfy a costs order.
- Estimate the costs likely to be awarded if the claim fails, and explain why security is needed.
- Propose the amount and the form of security, and be prepared to justify both.
- Keep the application proportionate to the size of the claim and the genuine risk of non-recovery.
What amounts to abuse of process
Abuse of process covers proceedings brought for an improper purpose or in a way that is unfair to the other party. Examples include claims that disclose no reasonable cause of action, are scandalous or vexatious, are brought to relitigate matters already decided, or are designed to exhaust or obstruct the defendant rather than to obtain a remedy. The court’s power comes from the Civil Procedure Act and rules, together with its inherent jurisdiction to control its own process.
The power is used sparingly because striking out deprives a party of a hearing. The pleading must be demonstrably unmeritorious, not merely weak. A defendant that simply disputes the merits should argue the case at trial, not attempt to strike it out.
Striking out: the power and its limits
An application to strike out must identify the defect precisely: the missing cause of action, the pleading defect, the earlier decision or the improper purpose. Evidence that the claim has already been determined, or that the same issue is being litigated repeatedly, is usually more persuasive than argument about the merits.
The court may instead of striking out give directions, order amendments or manage the case to focus the issues. A measured application that offers the court a workable alternative is often more effective than one that asks for the maximum order.
Case management and repeated claims
Abuse of process is not limited to strike-out applications. Repeated, inconsistent claims over the same transaction may be managed through case-management powers, consolidation or an order limiting the issues in dispute. Keep a record of the litigation history so that any pattern is visible to the court.
The article on party-and-party costs in Kenya explains how costs are taxed and why recovery is rarely complete. The article on summary judgment for liquidated claims explains a different route for claims that are not seriously disputed.
Costs consequences and when to take advice
Applications of this kind carry costs consequences. A failed security application or strike-out is itself likely to be taxed against the applicant, and repeated unsuccessful applications can affect the court’s view of the case. A party considering an application should weigh the cost of making it against the protection it is likely to achieve. The tone of the application matters: a measured, well-evidenced motion persuades, while an aggressive one invites the same in reply. The firm’s commercial litigation practice advises defendants on these applications and on the risks of making them.
Advice is worth taking where the plaintiff is outside Kenya, where recovery of costs is doubtful, where a claim appears to have been brought for an improper purpose, or where repeated litigation over the same matter is threatened.
Primary sources
- Civil Procedure Act, Kenya Law, for the framework of civil procedure and costs.
- Kenya Law, for the Civil Procedure Rules and reported decisions on security for costs and abuse of process.
- Judiciary of Kenya, for court structure and procedure.
This article is general information, not legal advice.