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ELCDismissedEldoret ELC No. 83 of 2015 (Notice of Motion dated 6th July 2015)· [2017] KEELC 2447 (KLR)

Hasham Lalji Properties Limited v Bahadurali Hasham Lalji [2017] KEELC 2447 (KLR)

Environment and Land Court
28 June 2017
3,846 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to strike out a land suit even though the plaintiff hid a previous case, because a withdrawn suit doesn't bar a fresh one and the mistake could be fixed by amendment.

What this practically means

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Executive summary

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The plaintiff company, Hasham Lalji Properties Ltd, sued the defendant, Bahadurali Hasham Lalji, over Eldoret Municipality Block 8/64. The defendant applied by Notice of Motion dated 6th July 2015 to strike out the plaint and the verifying affidavit deponed by Diamond H. Lalji, to dismiss the entire suit, and to have Diamond Lalji prosecuted for perjury. He argued the suit was res judicata and an abuse of process because a previous suit between the same parties over the same subject matter, Eldoret ELC No. 391 of 2012 (formerly HCCC No. 173 of 2007), had lasted about seven years before being withdrawn in February 2014; that the plaint falsely denied any previous proceedings contrary to Order 4, Rule 1; and that the suit was frivolous, vexatious and founded on perjury. The plaintiff conceded the previous suit and the non-disclosure but explained it as an advocate's oversight, offered to amend, and argued that a withdrawn suit, never heard on merit, cannot bar a fresh suit. The court framed three issues: res judicata/abuse of process, perjury, and the effect of non-compliance with Order 4, Rule 1. It held the doctrine of res judicata was inapplicable since the previous suit was withdrawn without hearing and determination, withdrawal being a right under Order 25, Rule 1; that the suit was not shown to be scandalous, frivolous or vexatious; and that although the plaintiff lied about the previous proceedings, no intent to mislead was demonstrated and striking out would deny access to justice. The non-disclosure was curable by amendment. The application was dismissed with no order as to costs because of the plaintiff's non-disclosure.

Key legal issues

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01

Res judicata and abuse of process

Holding

The doctrine does not apply because the previous suit, Eldoret ELC No. 391 of 2012 (formerly HCCC No. 173 of 2007), was withdrawn before hearing and determination, so the statutory requirements including finality were unmet

Reasoning

Section 7 of the Civil Procedure Act requires that the matter in the former suit have been heard and finally decided. The previous suit was withdrawn under Order 25, Rule 1, which is a party's right, and withdrawal cannot bar a fresh suit on the same cause of action. Accordingly there was no abuse of court process.

p. 6
02

Whether the suit is scandalous, frivolous and vexatious

Holding

The defendant failed to establish that the suit is scandalous, frivolous or vexatious or an abuse of the court's process

Reasoning

The court set out the meaning of scandalous, frivolous and vexatious pleadings and held the process of the court must be used properly, honestly and in good faith. None of the conditions were proved by the defendant, so the argument failed.

p. 6
03

Non-compliance with Order 4, Rule 1 and perjury

Holding

The non-disclosure of the previous suit was a curable defect; the plaintiff lied but intent to mislead was not shown, so striking out would deny access to justice

Reasoning

The plaintiff admitted failing to disclose the previous suit, attributing it to an advocate's oversight. The deponent ought to have known the plaint's contents were untrue, but intent to mislead was not demonstrated. The proper remedy for misleading the court is a separate application, not striking out the suit; the plaintiff may amend and swear a further verifying affidavit.

p. 6

Legal principles established

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  • A withdrawn suit that was never heard and determined on merit cannot found a plea of res judicata; withdrawal is a party's right under Order 25, Rule 1 and does not bar a subsequent suit
  • Non-disclosure of a previous suit in a plaint is a curable procedural defect where no prejudice is shown, to be remedied by amendment and substantive justice

Court orders

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  1. 1.The defendant's Notice of Motion dated 6th July 2015 seeking to strike out the plaint, the verifying affidavit and the entire suit is dismissed
  2. 2.No order as to costs
  3. 3.The plaintiff is allowed to amend the plaint to disclose the previous suit, with a further verifying affidavit

Authorities

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Legislation

  • Civil Procedure Act, Cap. 21, Laws of KenyaSection 7
  • Civil Procedure Rules, 2010Order 4, Rule 1
  • Civil Procedure Rules, 2010Order 25, Rule 1
  • Constitution of Kenya, 2010Article 151(2)

Cases cited (5)

  • Henderson v Henderson (1843) 67 ER 313
    (1843) 67 ER 313
  • Kivanja Estates Ltd v National Bank of Kenya
    (2014) eKLR
  • E.T v Attorney General & Another
    (2012) eKLR
  • Omondi v National Bank of Kenya Limited and Others
    (2001) EA 177
  • Njangu v Wambugu and another, Nairobi HCCC No. 2340 of 1991 (unreported)
    Nairobi HCCC No. 2340 of 1991 (unreported)
Jurisdiction invoked
Environment and Land Court jurisdiction over the suit (Article 162(2) constitutional scheme), determining a Notice of Motion under the Civil Procedure Act, Cap. 21 and Civil Procedure Rules, 2010

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, "Hasham Lalji Properties Limited v Bahadurali Hasham Lalji [2017] KEELC 2447 (KLR)", Case Analysis (2017). Eldoret ELC No. 83 of 2015 (Notice of Motion dated 6th July 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2447/eng@2017-06-28

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