Defendants are not obliged to meet every claim as filed. Where a suit appears designed to pressure rather than to vindicate a right, the court has two established shields: security for costs and its control of abuse of process.
When can a defendant seek security for costs?
The Civil Procedure Rules allow the court to order a plaintiff to give security for costs, most commonly where the plaintiff is ordinarily resident outside Kenya, and in other situations where good reason is shown. If security is not provided, the claim may be stayed or dismissed. The application is evidential: the defendant should show a realistic prospect that costs, if awarded, could not be recovered. Foreign plaintiffs may respond by pointing to local assets, so the analysis should be honest before filing.
What amounts to abuse of process?
The court may strike out pleadings that disclose no reasonable cause of action, are scandalous or vexatious, or otherwise abuse its process, a power drawn from the Civil Procedure Rules (kenyalaw.org) and the court’s inherent jurisdiction. Courts use it cautiously, because striking out deprives a party of a hearing; the pleading must be demonstrably unmeritorious, not merely weak. The power is not a shortcut for defendants who simply dispute the merits, strong defences are argued at trial, not by striking out. Repeated, inconsistent claims over the same transaction may also be managed through the court’s case-management powers.
How should these applications be approached?
- Gather evidence of the plaintiff’s residence, assets and litigation history early.
- Balance protection against the court’s reluctance to deny a hearing on the merits.
- Weigh costs consequences: a failed application is itself taxed against the applicant.
- Keep the application proportionate to the size of the claim and the genuine risk.
Applications of this kind are as much about tone as technicality, a measured, well-evidenced motion persuades; an aggressive one invites the same in reply. Our governance advisory practice helps companies keep decision-making records in order, and our arbitration and ADR practice assesses whether the dispute belongs in arbitration at all.
For guidance on your specific situation, contact CS Advocates LLP, call, WhatsApp, or book a confidential consultation at our Westlands, Nairobi office.