Batian Logistic Solutions Limited v Abdul Waheed Sheikh & another [2015] KEELC 717 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Abuse of process and striking out under Order 2 Rule 15
The suit was struck out as scandalous, frivolous, vexatious and an abuse of the process of the court, the application being unopposed.
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plaintiff had previously sued on the same subject matter and between the same parties in HC ELC 559 of 2013, which was withdrawn with costs.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.
Suing trustees in their individual capacities
The Defendants held the suit property as trustees of the Sheikh Fazal Ilahi Noordin Charitable Trust and could not properly be sued individually.
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.
Effect of surrender of the certificate of lease
Upon surrender of the fraudulently procured certificate of lease, the plaintiff ceased to have any interest in the suit property.
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.
Legal principles established
#- 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
#- 1.The plaintiff's suit is struck out
- 2.Costs of the struck out suit and the instant application awarded to the Defendants
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.