NAIROBI, Kenya, Feb 17 — The Supreme Court has revoked an order for security of costs imposed on Kamlesh Pattni, a controversial businessman-cum preacher, in a suit involving the sale of the Grand Regency Hotel.
In a decision delivered on Friday, the court termed a 2017 ruling by the Court of Appeal ordering a Sh20 million security of costs payment as unreasonable.
“A declaration be and is hereby made that the order for the security of costs
made in Civil Application No. 37 of 2017 delivered on 8th December 2017 is
unreasonable,” the court declared.
The court went on to state “it (Court of Appeal decision) impedes the appellant’s access to justice by imposing a condition precedent before a matter can be heard contrary to Articles 48, 50 and 159 of the Constitution of Kenya.”
Peculiar circumstances
The country’s apex court held that while security of costs may be imposed as a condition precedent in peculiar circumstances, the same must not impede a litigant’s right to access justice.
The Supreme Court held that security of costs may be imposed in extraordinary suits such as election petitions.
It noted however that “the same should be done in a manner that is reasonable and not to punish or subdue a genuine claim.”
The court concluded that imposition of a condition precedent is not in itself unconstitutional, “provided it is not unreasonable to the extent that it impedes a party’s access to justice.”
Pattni had moved to the High Court in October 1998 alongside Westmont Holdings
SDN BHD to seek a Sh185 million refund from the Central Bank of Kenya which was paid as deposit for the purchase of the Grand Regency Hotel, now Laico Regency Hotel.
His bid was unsuccessful prompting an appeal at the Court of Appeal which allowed his application in 2017 on condition that he deposits Sh20 million as security of costs.
