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ELCPartially AllowedNot stated on the face of the judgment· [2015] KEELC 717 (KLR)

Batian Logistic Solutions Limited v Abdul Waheed Sheikh & another [2015] KEELC 717 (KLR)

High Court of Kenya, Environment and Land Division
6 February 2015
1,136 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court struck out a land lawsuit as an abuse of court process because the plaintiff had already lost its title and sued the wrong people.

What this practically means

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Executive summary

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The Defendants brought a Notice of Motion dated 10th April 2014 under Article 159 of the Constitution, sections 1A, 1B and 3A and Order 2 Rule 15(1)(b) and (d) and Order 51 of the Civil Procedure Rules, seeking to strike out the plaintiff's suit concerning L.R. No. 209/74/3 Nairobi as an abuse of process, or alternatively as scandalous, frivolous and vexatious, with costs. They deponed that they held the property only as trustees of the Sheikh Fazal Ilahi Noordin Charitable Trust, which acquired it under an indenture of 4th July 1946 for the residue of a 99-year lease, later renewed for a further 99 years with a new Grant IR 103381 registered in 2006. They contended the plaintiff's certificate of lease (Nairobi Block 34/464) was fraudulently procured, that the Land Registrar so notified the plaintiff and requested surrender, and that the plaintiff complied in February 2014. They further relied on prior proceedings between the same parties in HC ELC 559 of 2013, which the plaintiff withdrew with costs on 7th October 2013 (per Nyamweya J), arguing the present suit duplicated those grounds. The plaintiff, though duly served, neither filed a response nor appeared; the application was unopposed. Mutungi J was satisfied the Defendants were the registered trustees who could only be sued as such, that the plaintiff's certificate was fraudulently procured and surrendered, and that the plaintiff had ceased to hold any interest in the property. He found the suit scandalous, frivolous, vexatious and an abuse of process, struck out the suit, and awarded costs of both the suit and the application to the Defendants. The ruling was delivered on 6th February 2015.

Key legal issues

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01

Abuse of process and striking out under Order 2 Rule 15

Holding

The suit was struck out as scandalous, frivolous, vexatious and an abuse of the process of the court, the application being unopposed.

Reasoning

The Defendants showed the plaintiff had previously sued on the same subject matter and between the same parties in HC ELC 559 of 2013, which was withdrawn with costs. The plaintiff's title was found to have been fraudulently procured, the Land Registrar had called for its surrender, and the plaintiff obliged. The application was served and unopposed; the court was satisfied on the material that the suit was an abuse of process and struck it out with costs.

p. 2
02

Suing trustees in their individual capacities

Holding

The Defendants held the suit property as trustees of the Sheikh Fazal Ilahi Noordin Charitable Trust and could not properly be sued individually.

Reasoning

The court perused the supporting affidavit and annextures and was satisfied that the Defendants were the registered trustees of the Trust in respect of L.R. No. 209/74/3, holding under a renewed 99-year lease (Grant IR 103381). Any cause of action by the plaintiff, if it existed, would lie against the Trust, not the individual trustees.

p. 2
03

Effect of surrender of the certificate of lease

Holding

Upon surrender of the fraudulently procured certificate of lease, the plaintiff ceased to have any interest in the suit property.

Reasoning

The Land Registrar wrote to the plaintiff on 24th December 2013 stating its certificate of lease (Nairobi Block 34/464) was fraudulently processed and requesting surrender; by letter dated 17th February 2014 the Registrar confirmed the surrender. The court drew the inference that the plaintiff's fraudulent scheme had been exposed, explaining its failure to respond to the application.

p. 2

Legal principles established

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  • A suit that is scandalous, frivolous and vexatious amounts to an abuse of the process of the court and may be struck out under Order 2 Rule 15 of the Civil Procedure Rules
  • Trustees may only be sued in their capacity as trustees, not in their individual capacities, in respect of trust property

Court orders

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  1. 1.The plaintiff's suit is struck out
  2. 2.Costs of the struck out suit and the instant application awarded to the Defendants

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Civil Procedure Act, Cap 21Sections 1A, 1B and 3A
  • Civil Procedure RulesOrder 2 Rule 15(1)(b) and (d); Order 51 Rules 1 and 3
  • Registered Land Act, Cap 300 (repealed)Not specified
Jurisdiction invoked
Article 159 of the Constitution 2010; sections 1A, 1B and 3A and Order 2 Rule 15(1)(b) and (d), Order 51 Rules 1 and 3 of the Civil Procedure Act, Cap 21

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Batian Logistic Solutions Limited v Abdul Waheed Sheikh & another [2015] KEELC 717 (KLR)", Case Analysis (2015). Not stated on the face of the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/717/eng@2015-02-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.