Introduction and Background
1. The Plaintiff commenced this suit against the Defendant through a Plaint dated 20th January 2025 claiming a liquidated sum of EUR 9,500,000. He avers that the said funds were remitted to his account domiciled with the Defendant by Credit Foncier Limited of Kampala, Uganda on behalf of a remitter identified in the pleadings as Canwell Corporation Limited.
2. In response, the Defendant filed a Statement of Defence dated 19th February 2025. It denies receipt of the said funds and further contends that the Plaintiff has neither furnished the primary banking instruments nor other cogent proof to authenticate the alleged inward remittance into its nostro account.
3. On 24th February 2025, the Defendant moved the Court vide a Notice of Motion of even date seeking, inter alia, security for its costs of the suit in the sum of Kshs.25,734,266.67 or such other sum as the Court would deem fit, to be deposited in a joint interest-earning account held in the names of the parties' respective Advocates. The said application was disposed of vide a Ruling delivered on 3rd October 2025 in which the Court directed that the Plaintiff deposits security for costs in the sum of Kshs.5,000,000.00 in a joint interest-earning account in the names of the parties' advocates within thirty (30) days of the Ruling failing which the Court would issue further directions.
4. The thirty-day period lapsed on 2nd November 2025 without compliance. When the matter came up for mention on 3rd November 2025, Counsel for the Plaintiff conceded non-compliance and sought a further thirty (30) days which the Court granted while emphasizing that time remained of the essence. The extended period lapsed on 2nd December 2025 without the Plaintiff depositing the security for costs as ordered.
5. Consequently, the Defendant has moved the Court vide a Notice of Motion dated 20th January 2026 brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 2 Rule 15(1)(b), (c) and (d) and Order 51 Rule 1 of the Civil Procedure Rules seeking that the Plaint dated 20th January 2025 be struck out with costs. The application is predicated on the ground that non-compliance with a peremptory order of the Court on deposit of security for costs is fatal to the maintenance of the suit. The application is supported by the affidavit of Esther Kihara, the Defendant's Acting Head of Legal sworn on 20th January 2026 which sets out the chronology and the Plaintiff's default. I see no need to rehash the same save for reference in the analysis and determination.
6. The Plaintiff did not respond to the application within the timelines directed by the Court. Instead, he filed a separate Notice of Motion dated 13th February 2026 under Articles 50(1), (2)(a), (c), (d) and 159(2)(d), (e) of the Constitution, Sections 1A, 1B, 3A and 80 of the Civil Procedure Act and Order 22 Rule 22, Order 45 Rules 1 and 2 of the Civil Procedure Rules. He sought the following orders:
i. An Order for production of the Plaintiff's bank statement held with the Defendant;
ii. An Order for stay of the hearing of the Defendant's application dated 20th January 2026 pending the hearing and determination of its Plaintiff's application;
iii. An Order for review, variation or setting aside of the Ruling delivered on 3rd October 2025 and of consequential orders issued on 26th January 2026 touching on the security for costs; and
iv. Upon such review, an Order for dismissal of the Defendant's application dated 20th January 2026.
7. The application is supported by the Plaintiff's affidavit sworn on even date in which he reiterates his account of the disputed remittance and asserts that the Order for security for costs is punitive and constitutionally infirm.
8. In response, the Defendant filed a Notice of Preliminary Objection dated 3rd March 2026. It contended that the application is an appeal against the Ruling delivered on 3rd October 2025 disguised as an application for review which this Court being functus officio, lacks jurisdiction to entertain. It further contended that the application fails the statutory test for review under Section 80 of the Civil Procedure Act and Order 45 Rules 1 and 2 of the Civil Procedure Rules in that it invites the Court to re-appraise evidence already considered. It also contended that the application was brought after inordinate and unexplained delay of more than four (4) months after the Order for security for costs and after the Plaintiff had filed and subsequently abandoned a Notice of Appeal. Moreover, it was the Defendant’s contention that the application is an abuse of the court process intended merely to delay determination of the Defendant's application for striking out the Plaintiff’s suit.
9. On 30th March 2026, the Plaintiff filed a Replying Affidavit of even date opposing the Defendant's application seeking to strike out the suit. He maintained that the Defendant through a letter dated 24th December 2024, admitted receipt of the subject funds and requested compliance documents which the Plaintiff duly furnished. He further deposed that a subsequent letter from Credit Foncier Limited dated 10th January 2025 confirmed that the funds were never recalled and that the Defendant's denial of receipt in its Defence is contradictory.
Issues for Determination:
10. I have equally considered the submissions filed by the parties and the following issues arise for determination:
i. Whether the Notice of Preliminary Objection dated 3rd March 2026 is sustainable;
ii. Whether the Plaintiff's Notice of Motion dated 13th February 2026 is merited; and;
iii. Whether the Defendant's Notice of Motion dated 20th January 2026 is merited.
Analysis and Determination
i. On the Notice of Preliminary Objection dated 3rd March 2026:
11. The governing authority remains the locus classicus in Mukisa Biscuit Manufacturing Co. Ltd V West End Distributors Ltd, [1969] EA 696 in which the East African Court of Appeal held that a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings and which if argued as a preliminary point, may dispose of the suit.
12. This principle was echoed in Oraro V Mbaja, [2005] KEHC 3182, where Ojwang, J (as he then was) held that a Preliminary Objection is a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. The Court further stated that a party raising an objection must be taken to accept the correctness of the facts pleaded by the opposing side for purposes of the objection alone.
13. Applying that test to the present case, I find that the Defendant's objection, namely, that the Plaintiff's application is, in substance, an appeal disguised as a review application over which this Court, having already rendered a final decision, is functus officio, and that the application in any event fails to meet the statutory test for review, constitutes a properly constituted point of law. It arises directly from the pleadings and the terms of the impugned application, requires no determination of disputed facts, and, if upheld, would dispose of the Plaintiff's application in its entirety. It therefore satisfies the threshold established in the Mukisa Biscuit case.
14. The objection concerning inordinate and unexplained delay, together with abuse of court process, stands on a different footing. These are fact-sensitive contentions, closely bound up with the chronology of events and the conduct of the parties, and are more appropriately treated as substantive grounds of opposition rather than as freestanding preliminary points of law. For the avoidance of doubt, given the mixed character of issues raised in the preliminary objection, I consider it preferable to determine the application on its substance.
ii. The Plaintiff's application for review and the doctrine of functus officio:
15. Section 80 of the Civil Procedure Act empowers any person aggrieved by a decree or order to apply for review. Order 45 Rule 1 of the Civil Procedure Rules confines the grounds of review to three: the discovery of new and important matter or evidence which after the exercise of due diligence was not within the applicant's knowledge or could not be produced at the material time; a mistake or error apparent on the face of the record; or any other sufficient reason. Rule 1(1) further requires that the application be made without unreasonable delay.
16. On the doctrine of functus officio, the Supreme Court in Murgani V Kenya Revenue Authority, (Civil Application 4 of 2014) [2014] KESC KLR stated the general principle that after passing judgement, a Court becomes functus officio and cannot revisit the judgment on merits or purport to exercise a judicial power over the same matter, save as provided by law.
17. Further, in Raila Odinga V Independent Electoral & Boundaries Commission & 3 Others, (Petition 5, 4 & 3 of 2013 (Consolidated) [2013] KESC 8 (KLR), the Supreme Court adopting the exposition of Daniel Malan Pretorius on the origins of the doctrine, explained the rationale that it is one of the mechanisms by means of which the law gives expression to the principle of finality.
18. As to what constitutes an error apparent on the face of the record for purposes of Order 45 of the Civil Procedure Rules, the Court of Appeal in Nyamogo & Nyamogo V Kogo, [2001] EA 174 held that an error apparent on the face of the record must be determined judicially on the facts of each case. Further, that there is a real distinction between a mere erroneous decision and an error apparent on the face of the record.
19. The distinction between review and appeal and the impermissibility of using the former to achieve the latter was underscored in Anthony Chelimo V Kenya Commercial Bank Limited, [2020] KEELRC where the Court, Makau, J, held that an application premised on the contention that the Court failed to consider or take into account certain evidence and as a result arrived at a wrong decision, may be good grounds of appeal because they challenge the merits of the decision but are not available on review. Similarly, in Shreeji Enterprises Ltd V Chai, (Civil Appeal 71 of 2019) [2020] KEHC, Nyakundi, J, held that failure to analyze evidence is not a ground for review where there is no error apparent on the face of the record, such matters being a good ground for appeal and not for review.
20. On the requirement of promptitude, the Court, Onyango, J, in Executive Committee Chelimo Plot Owners Welfare Group & 288 Others V Langat Joel & 4 Others (sued as the Management Committee of Chelimo Squatters Group), [2018] KEELC held that failure by an applicant to explain delay in bringing a review application even where the lapse of time is not of itself inordinate, may nonetheless be construed as unreasonable delay disentitling the applicant to the remedy sought.
21. Applying these principles to the present matter, the grounds in the Plaintiff's application, the averments in the supporting affidavit and submissions leave no doubt that what is sought is not review but a merit-based re-litigation of matters already adjudicated upon in the Ruling delivered on 3rd October 2025. The grounds advanced being that the Court allegedly superimposed an unjustified requirement of security for costs, that the Defendant's own admissions and the correspondence from Credit Foncier Limited ought to have led to a different outcome and that the quantum fixed was punitive. These are invitations to re-weigh evidence and arguments that were properly canvassed at the hearing that culminated in the Ruling. None of the three statutory grounds under Order 45 Rule 1 is made out.
22. Moreover, the delay in bringing the application cannot be overlooked. The Ruling was delivered on 3rd October 2025. The default in compliance crystallized on 2nd December 2025 upon lapse of the extended period. In contrast, the application for review was filed on 13th February 2026, more than four (4) months after the Ruling and well over two (2) months after the final default with no explanation proffered for the delay. This is notwithstanding the uncontroverted fact that the Plaintiff had failed to prosecute an appeal against the said Ruling, an action indicative of an election of remedy inconsistent with the review now belatedly sought.
23. It follows that the Plaintiff's Notice of Motion dated 13th February 2026, to the extent that it seeks variation or setting aside of the Ruling delivered on 3rd October 2025 and of the consequential orders of 26th January 2026, does not meet the threshold for review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules.
24. The prayer for stay of the hearing of the Defendant's Notice of Motion dated 20th January 2026 was made contingent upon the success of the review application. Having found that the review application discloses no arguable case, it follows that the prayer for a stay of proceedings cannot be sustained and must accordingly fail.
iii. The Defendant's Notice of Motion dated 20th January 2026 for striking out of the Plaint:
25. Order 2 Rule 15(1) of the Civil Procedure Rules empowers the Court, at any stage of the proceedings, to strike out or amend any pleading. This power may be exercised on several grounds: that the pleading discloses no reasonable cause of action; that it is scandalous, frivolous or vexatious; that it may prejudice, embarrass or delay the fair trial of the action; or that it is otherwise an abuse of the process of the Court. This provision must be read together with Order 26 of the Civil Procedure Rules, under which the Court may order security for costs and prescribe the consequences of default. It must also be read alongside Sections 1A and 1B of the Civil Procedure Act. These sections oblige both the Court and the parties to give effect to the overriding objective of just, expeditious and proportionate determination of disputes, including strict adherence to timelines set by the Court.
26. These provisions are reinforced by binding judicial authority on the consequences of non-compliance with court orders. The Supreme Court in Nicholas Kiptoo Korir Salat V Independent Electoral and Boundaries Commission & 7 Others, [2014] eKLR observed that no court could give succor to litigants hell-bent not to comply with the rules. That dictum was applied directly to the question of compliance with directions on security for costs by this Court (Otieno, J) in Lucy Nyokabi Nyambura v Ruth Dama Charo & 2 others [2018] KEHC.
27. This approach finds further reinforcement in the Court of Appeal's treatment of default on orders compelling disclosure or compliance. In Barclays Bank of Kenya Limited V Christopher Orina Kenyariri & Another, [2017] KECA the Court of Appeal affirmed this Court's approach, Mabeya, J, emphasizing the value of open, honest, accountable and rational conduct of litigation, to the effect that a party who fails, without justification, to comply with a Court order made in the course of proceedings exposes the offending pleading to being struck out.
28. Similarly, in Ahmed Kulimye Bin & 2 Others V Kenya Revenue Authority & Another, [2012] KEHC, the Court, Mwongo, J, ordered deposit of security for costs within a period of twenty-one (21) days with the express consequence that default would result in the plaint being struck off. Further, in Ruth N.M. Onyancha V Standard Ltd, [2007] KEHC 2171 (KLR), the Court, Osiemo, J, held that a party who fails to comply with an Order for further and better particulars, duly served and unchallenged, is liable to have the offending pleading struck out.
29. It follows from this line of authority that striking out a pleading, far from being an unusual or drastic step, is the ordinary and expected consequence where a party's own conduct calls for it. Applying these principles to the present case, the material facts are not in dispute. The Order for deposit of security for costs was made on 3rd October 2025 in clear and peremptory terms, with an express default consequence. The additional thirty (30) days period was at the Plaintiff's own request following an acknowledged default. The period was extended to 2nd December 2025. To date, no security has been deposited; no further extension was sought before expiry of that period; nor was any competent or timeous application mounted to review, vary or set aside the Order. The Plaintiff's Replying Affidavit sworn on 30th March 2026 was confined to the underlying merits of the dispute over the disputed remittance rather than to the fact or any justification for non-compliance.
30. It is also his submission that enforcement of the requirement for security for costs in the current economic climate would offend Articles 47, 48, 50 and 159 of the Constitution by impeding his access to justice. I have considered these submissions alive to the gravity of striking out a plaint founded on a claim of a colossal sum exceeding 1 billion Kenya shillings and to the constitutional weight properly attaching to the right of access to justice.
31. However, these submissions do not answer the narrow question before the Court. The merits of the alleged fiduciary breach and the significance of the Defendant's correspondence of 24th December 2024 are matters going to the substance of the main suit, to be tried and determined on the totality of the evidence at trial. Moreover, they are substantially the same matters that were already placed before and considered by the Court in arriving at the Ruling delivered on 3rd October 2025. Therefore, they cannot be recycled as an answer to a subsequent and freestanding application to strike out for non-compliance with that very Ruling.
32. In any case, the constitutional guarantee invoked cuts both ways: it secures the Defendant's entitlement to security for the costs of defending a claim of this magnitude, and to the orderly and timely conduct of the litigation, just as much as it secures the Plaintiff's entitlement to be heard. A litigant who regards an Order for security for costs as oppressive is not without recourse in law. That recourse lies in a timeous and properly grounded application for variation, extension or review, or, failing that, in an appeal. It is this avenue that the Constitution and the applicable law contemplate, not silent non-compliance followed by a belated and incompetent application for review.
33. In the circumstances, I am satisfied that the Plaintiff's continued and unexplained non-compliance with the Order for deposit of security for costs, which has persisted well beyond the extended period granted at his own request, renders the further maintenance of the Plaint an abuse of the process of the Court, within the meaning of Order 2 Rule 15(1)(c) and (d) of the Civil Procedure Rules. This is accordingly a proper case for the striking out of the Plaint dated 20th January 2025.
Final Orders and Disposition
34. For the foregoing reasons, the following final Orders do hereby issue:
i. The Notice of Preliminary Objection dated 3rd March 2026 is hereby dismissed. I make no orders as to costs.
ii. The Notice of Motion dated 13th February 2026 dismissed with costs.
iii. The Notice of Motion dated 20th January 2026 is hereby allowed. The Plaintiff shall have the costs of the application.
iv. The Plaint dated 20th January 2025 is hereby struck out with costs.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 18TH DAY OF SEPTEMBER 2026.
F. MUGAMBI
JUDGE
Delivered in presence of:
Kigata for DH/applicant
Court Assistants: Lillian & Gloria
1. The Plaintiff commenced this suit against the Defendant through a Plaint dated 20th January 2025 claiming a liquidated sum of EUR 9,500,000. He avers that the said funds were remitted to his account domiciled with the Defendant by Credit Foncier Limited of Kampala, Uganda on behalf of a remitter identified in the pleadings as Canwell Corporation Limited.
2. In response, the Defendant filed a Statement of Defence dated 19th February 2025. It denies receipt of the said funds and further contends that the Plaintiff has neither furnished the primary banking instruments nor other cogent proof to authenticate the alleged inward remittance into its nostro account.
3. On 24th February 2025, the Defendant moved the Court vide a Notice of Motion of even date seeking, inter alia, security for its costs of the suit in the sum of Kshs.25,734,266.67 or such other sum as the Court would deem fit, to be deposited in a joint interest-earning account held in the names of the parties' respective Advocates. The said application was disposed of vide a Ruling delivered on 3rd October 2025 in which the Court directed that the Plaintiff deposits security for costs in the sum of Kshs.5,000,000.00 in a joint interest-earning account in the names of the parties' advocates within thirty (30) days of the Ruling failing which the Court would issue further directions.
4. The thirty-day period lapsed on 2nd November 2025 without compliance. When the matter came up for mention on 3rd November 2025, Counsel for the Plaintiff conceded non-compliance and sought a further thirty (30) days which the Court granted while emphasizing that time remained of the essence. The extended period lapsed on 2nd December 2025 without the Plaintiff depositing the security for costs as ordered.
5. Consequently, the Defendant has moved the Court vide a Notice of Motion dated 20th January 2026 brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 2 Rule 15(1)(b), (c) and (d) and Order 51 Rule 1 of the Civil Procedure Rules seeking that the Plaint dated 20th January 2025 be struck out with costs. The application is predicated on the ground that non-compliance with a peremptory order of the Court on deposit of security for costs is fatal to the maintenance of the suit. The application is supported by the affidavit of Esther Kihara, the Defendant's Acting Head of Legal sworn on 20th January 2026 which sets out the chronology and the Plaintiff's default. I see no need to rehash the same save for reference in the analysis and determination.
6. The Plaintiff did not respond to the application within the timelines directed by the Court. Instead, he filed a separate Notice of Motion dated 13th February 2026 under Articles 50(1), (2)(a), (c), (d) and 159(2)(d), (e) of the Constitution, Sections 1A, 1B, 3A and 80 of the Civil Procedure Act and Order 22 Rule 22, Order 45 Rules 1 and 2 of the Civil Procedure Rules. He sought the following orders:
i. An Order for production of the Plaintiff's bank statement held with the Defendant;
ii. An Order for stay of the hearing of the Defendant's application dated 20th January 2026 pending the hearing and determination of its Plaintiff's application;
iii. An Order for review, variation or setting aside of the Ruling delivered on 3rd October 2025 and of consequential orders issued on 26th January 2026 touching on the security for costs; and
iv. Upon such review, an Order for dismissal of the Defendant's application dated 20th January 2026.
7. The application is supported by the Plaintiff's affidavit sworn on even date in which he reiterates his account of the disputed remittance and asserts that the Order for security for costs is punitive and constitutionally infirm.
8. In response, the Defendant filed a Notice of Preliminary Objection dated 3rd March 2026. It contended that the application is an appeal against the Ruling delivered on 3rd October 2025 disguised as an application for review which this Court being functus officio, lacks jurisdiction to entertain. It further contended that the application fails the statutory test for review under Section 80 of the Civil Procedure Act and Order 45 Rules 1 and 2 of the Civil Procedure Rules in that it invites the Court to re-appraise evidence already considered. It also contended that the application was brought after inordinate and unexplained delay of more than four (4) months after the Order for security for costs and after the Plaintiff had filed and subsequently abandoned a Notice of Appeal. Moreover, it was the Defendant’s contention that the application is an abuse of the court process intended merely to delay determination of the Defendant's application for striking out the Plaintiff’s suit.
9. On 30th March 2026, the Plaintiff filed a Replying Affidavit of even date opposing the Defendant's application seeking to strike out the suit. He maintained that the Defendant through a letter dated 24th December 2024, admitted receipt of the subject funds and requested compliance documents which the Plaintiff duly furnished. He further deposed that a subsequent letter from Credit Foncier Limited dated 10th January 2025 confirmed that the funds were never recalled and that the Defendant's denial of receipt in its Defence is contradictory.
Issues for Determination:
10. I have equally considered the submissions filed by the parties and the following issues arise for determination:
i. Whether the Notice of Preliminary Objection dated 3rd March 2026 is sustainable;
ii. Whether the Plaintiff's Notice of Motion dated 13th February 2026 is merited; and;
iii. Whether the Defendant's Notice of Motion dated 20th January 2026 is merited.
Analysis and Determination
i. On the Notice of Preliminary Objection dated 3rd March 2026:
11. The governing authority remains the locus classicus in Mukisa Biscuit Manufacturing Co. Ltd V West End Distributors Ltd, [1969] EA 696 in which the East African Court of Appeal held that a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings and which if argued as a preliminary point, may dispose of the suit.
12. This principle was echoed in Oraro V Mbaja, [2005] KEHC 3182, where Ojwang, J (as he then was) held that a Preliminary Objection is a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. The Court further stated that a party raising an objection must be taken to accept the correctness of the facts pleaded by the opposing side for purposes of the objection alone.
13. Applying that test to the present case, I find that the Defendant's objection, namely, that the Plaintiff's application is, in substance, an appeal disguised as a review application over which this Court, having already rendered a final decision, is functus officio, and that the application in any event fails to meet the statutory test for review, constitutes a properly constituted point of law. It arises directly from the pleadings and the terms of the impugned application, requires no determination of disputed facts, and, if upheld, would dispose of the Plaintiff's application in its entirety. It therefore satisfies the threshold established in the Mukisa Biscuit case.
14. The objection concerning inordinate and unexplained delay, together with abuse of court process, stands on a different footing. These are fact-sensitive contentions, closely bound up with the chronology of events and the conduct of the parties, and are more appropriately treated as substantive grounds of opposition rather than as freestanding preliminary points of law. For the avoidance of doubt, given the mixed character of issues raised in the preliminary objection, I consider it preferable to determine the application on its substance.
ii. The Plaintiff's application for review and the doctrine of functus officio:
15. Section 80 of the Civil Procedure Act empowers any person aggrieved by a decree or order to apply for review. Order 45 Rule 1 of the Civil Procedure Rules confines the grounds of review to three: the discovery of new and important matter or evidence which after the exercise of due diligence was not within the applicant's knowledge or could not be produced at the material time; a mistake or error apparent on the face of the record; or any other sufficient reason. Rule 1(1) further requires that the application be made without unreasonable delay.
16. On the doctrine of functus officio, the Supreme Court in Murgani V Kenya Revenue Authority, (Civil Application 4 of 2014) [2014] KESC KLR stated the general principle that after passing judgement, a Court becomes functus officio and cannot revisit the judgment on merits or purport to exercise a judicial power over the same matter, save as provided by law.
17. Further, in Raila Odinga V Independent Electoral & Boundaries Commission & 3 Others, (Petition 5, 4 & 3 of 2013 (Consolidated) [2013] KESC 8 (KLR), the Supreme Court adopting the exposition of Daniel Malan Pretorius on the origins of the doctrine, explained the rationale that it is one of the mechanisms by means of which the law gives expression to the principle of finality.
18. As to what constitutes an error apparent on the face of the record for purposes of Order 45 of the Civil Procedure Rules, the Court of Appeal in Nyamogo & Nyamogo V Kogo, [2001] EA 174 held that an error apparent on the face of the record must be determined judicially on the facts of each case. Further, that there is a real distinction between a mere erroneous decision and an error apparent on the face of the record.
19. The distinction between review and appeal and the impermissibility of using the former to achieve the latter was underscored in Anthony Chelimo V Kenya Commercial Bank Limited, [2020] KEELRC where the Court, Makau, J, held that an application premised on the contention that the Court failed to consider or take into account certain evidence and as a result arrived at a wrong decision, may be good grounds of appeal because they challenge the merits of the decision but are not available on review. Similarly, in Shreeji Enterprises Ltd V Chai, (Civil Appeal 71 of 2019) [2020] KEHC, Nyakundi, J, held that failure to analyze evidence is not a ground for review where there is no error apparent on the face of the record, such matters being a good ground for appeal and not for review.
20. On the requirement of promptitude, the Court, Onyango, J, in Executive Committee Chelimo Plot Owners Welfare Group & 288 Others V Langat Joel & 4 Others (sued as the Management Committee of Chelimo Squatters Group), [2018] KEELC held that failure by an applicant to explain delay in bringing a review application even where the lapse of time is not of itself inordinate, may nonetheless be construed as unreasonable delay disentitling the applicant to the remedy sought.
21. Applying these principles to the present matter, the grounds in the Plaintiff's application, the averments in the supporting affidavit and submissions leave no doubt that what is sought is not review but a merit-based re-litigation of matters already adjudicated upon in the Ruling delivered on 3rd October 2025. The grounds advanced being that the Court allegedly superimposed an unjustified requirement of security for costs, that the Defendant's own admissions and the correspondence from Credit Foncier Limited ought to have led to a different outcome and that the quantum fixed was punitive. These are invitations to re-weigh evidence and arguments that were properly canvassed at the hearing that culminated in the Ruling. None of the three statutory grounds under Order 45 Rule 1 is made out.
22. Moreover, the delay in bringing the application cannot be overlooked. The Ruling was delivered on 3rd October 2025. The default in compliance crystallized on 2nd December 2025 upon lapse of the extended period. In contrast, the application for review was filed on 13th February 2026, more than four (4) months after the Ruling and well over two (2) months after the final default with no explanation proffered for the delay. This is notwithstanding the uncontroverted fact that the Plaintiff had failed to prosecute an appeal against the said Ruling, an action indicative of an election of remedy inconsistent with the review now belatedly sought.
23. It follows that the Plaintiff's Notice of Motion dated 13th February 2026, to the extent that it seeks variation or setting aside of the Ruling delivered on 3rd October 2025 and of the consequential orders of 26th January 2026, does not meet the threshold for review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules.
24. The prayer for stay of the hearing of the Defendant's Notice of Motion dated 20th January 2026 was made contingent upon the success of the review application. Having found that the review application discloses no arguable case, it follows that the prayer for a stay of proceedings cannot be sustained and must accordingly fail.
iii. The Defendant's Notice of Motion dated 20th January 2026 for striking out of the Plaint:
25. Order 2 Rule 15(1) of the Civil Procedure Rules empowers the Court, at any stage of the proceedings, to strike out or amend any pleading. This power may be exercised on several grounds: that the pleading discloses no reasonable cause of action; that it is scandalous, frivolous or vexatious; that it may prejudice, embarrass or delay the fair trial of the action; or that it is otherwise an abuse of the process of the Court. This provision must be read together with Order 26 of the Civil Procedure Rules, under which the Court may order security for costs and prescribe the consequences of default. It must also be read alongside Sections 1A and 1B of the Civil Procedure Act. These sections oblige both the Court and the parties to give effect to the overriding objective of just, expeditious and proportionate determination of disputes, including strict adherence to timelines set by the Court.
26. These provisions are reinforced by binding judicial authority on the consequences of non-compliance with court orders. The Supreme Court in Nicholas Kiptoo Korir Salat V Independent Electoral and Boundaries Commission & 7 Others, [2014] eKLR observed that no court could give succor to litigants hell-bent not to comply with the rules. That dictum was applied directly to the question of compliance with directions on security for costs by this Court (Otieno, J) in Lucy Nyokabi Nyambura v Ruth Dama Charo & 2 others [2018] KEHC.
27. This approach finds further reinforcement in the Court of Appeal's treatment of default on orders compelling disclosure or compliance. In Barclays Bank of Kenya Limited V Christopher Orina Kenyariri & Another, [2017] KECA the Court of Appeal affirmed this Court's approach, Mabeya, J, emphasizing the value of open, honest, accountable and rational conduct of litigation, to the effect that a party who fails, without justification, to comply with a Court order made in the course of proceedings exposes the offending pleading to being struck out.
28. Similarly, in Ahmed Kulimye Bin & 2 Others V Kenya Revenue Authority & Another, [2012] KEHC, the Court, Mwongo, J, ordered deposit of security for costs within a period of twenty-one (21) days with the express consequence that default would result in the plaint being struck off. Further, in Ruth N.M. Onyancha V Standard Ltd, [2007] KEHC 2171 (KLR), the Court, Osiemo, J, held that a party who fails to comply with an Order for further and better particulars, duly served and unchallenged, is liable to have the offending pleading struck out.
29. It follows from this line of authority that striking out a pleading, far from being an unusual or drastic step, is the ordinary and expected consequence where a party's own conduct calls for it. Applying these principles to the present case, the material facts are not in dispute. The Order for deposit of security for costs was made on 3rd October 2025 in clear and peremptory terms, with an express default consequence. The additional thirty (30) days period was at the Plaintiff's own request following an acknowledged default. The period was extended to 2nd December 2025. To date, no security has been deposited; no further extension was sought before expiry of that period; nor was any competent or timeous application mounted to review, vary or set aside the Order. The Plaintiff's Replying Affidavit sworn on 30th March 2026 was confined to the underlying merits of the dispute over the disputed remittance rather than to the fact or any justification for non-compliance.
30. It is also his submission that enforcement of the requirement for security for costs in the current economic climate would offend Articles 47, 48, 50 and 159 of the Constitution by impeding his access to justice. I have considered these submissions alive to the gravity of striking out a plaint founded on a claim of a colossal sum exceeding 1 billion Kenya shillings and to the constitutional weight properly attaching to the right of access to justice.
31. However, these submissions do not answer the narrow question before the Court. The merits of the alleged fiduciary breach and the significance of the Defendant's correspondence of 24th December 2024 are matters going to the substance of the main suit, to be tried and determined on the totality of the evidence at trial. Moreover, they are substantially the same matters that were already placed before and considered by the Court in arriving at the Ruling delivered on 3rd October 2025. Therefore, they cannot be recycled as an answer to a subsequent and freestanding application to strike out for non-compliance with that very Ruling.
32. In any case, the constitutional guarantee invoked cuts both ways: it secures the Defendant's entitlement to security for the costs of defending a claim of this magnitude, and to the orderly and timely conduct of the litigation, just as much as it secures the Plaintiff's entitlement to be heard. A litigant who regards an Order for security for costs as oppressive is not without recourse in law. That recourse lies in a timeous and properly grounded application for variation, extension or review, or, failing that, in an appeal. It is this avenue that the Constitution and the applicable law contemplate, not silent non-compliance followed by a belated and incompetent application for review.
33. In the circumstances, I am satisfied that the Plaintiff's continued and unexplained non-compliance with the Order for deposit of security for costs, which has persisted well beyond the extended period granted at his own request, renders the further maintenance of the Plaint an abuse of the process of the Court, within the meaning of Order 2 Rule 15(1)(c) and (d) of the Civil Procedure Rules. This is accordingly a proper case for the striking out of the Plaint dated 20th January 2025.
Final Orders and Disposition
34. For the foregoing reasons, the following final Orders do hereby issue:
i. The Notice of Preliminary Objection dated 3rd March 2026 is hereby dismissed. I make no orders as to costs.
ii. The Notice of Motion dated 13th February 2026 dismissed with costs.
iii. The Notice of Motion dated 20th January 2026 is hereby allowed. The Plaintiff shall have the costs of the application.
iv. The Plaint dated 20th January 2025 is hereby struck out with costs.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 18TH DAY OF SEPTEMBER 2026.
F. MUGAMBI
JUDGE
Delivered in presence of:
Kigata for DH/applicant
Court Assistants: Lillian & Gloria