Hasham Lalji Properties Limited v Bahadurali Hasham Lalji [2017] KEELC 2447 (KLR)
The bottom line
#A Kenyan court refused to strike out a land suit even though the plaintiff hid a previous case, because a withdrawn suit doesn't bar a fresh one and the mistake could be fixed by amendment.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
#Executive summary
#Key legal issues
#Res judicata and abuse of process
The doctrine does not apply because the previous suit, Eldoret ELC No. 391 of 2012 (formerly HCCC No. 173 of 2007), was withdrawn before hearing and determination, so the statutory requirements including finality were unmet
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 The previous suit was withdrawn under Order 25, Rule 1, which is a party's right, and withdrawal cannot bar a fresh suit on the same cause of action.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.
Whether the suit is scandalous, frivolous and vexatious
The defendant failed to establish that the suit is scandalous, frivolous or vexatious or an abuse of the court's process
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.
Non-compliance with Order 4, Rule 1 and perjury
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
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.
Legal principles established
#- A withdrawn suit that was never heard and determined on merit cannot found a plea of res judicata; withdrawal is a party's right under Order 25, Rule 1 and does not bar a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
#- 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.No order as to costs
- 3.The plaintiff is allowed to amend the plaint to disclose the previous suit, with a further verifying affidavit
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.