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ELCAllowedCivil Suit No. 60 of 2014· [2017] KEELC 3056 (KLR)

Kalka Flowers Limited v Equity Bank of Kenya [2017] KEELC 3056 (KLR)

Environment and Land Court
10 April 2017
1,186 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kalka Flowers lost its land suit against Equity Bank after filing duplicate cases and ignoring a strike-out application, which the court allowed unopposed.

What this practically means

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Executive summary

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The 1st Defendant, Equity Bank Limited, filed a notice of motion dated 18th April 2016 under Order 2 Rule 15(1)(a)(b) and (d) of the Civil Procedure Rules seeking to strike out Civil Suit No. 60 of 2014 on the grounds that it was an abuse of process - the plaintiff having also filed Machakos ELC No. 12 of 2015 over the same subject matter (the sale of parcels Kajiado/Kisaju/1679 and Kajiado/Kisaju/1743 under statutory power of sale) - that it disclosed no reasonable cause of action, and that it was frivolous and vexatious. The application was supported by the affidavit of John Njenga. The plaintiff filed no replying affidavit or grounds of opposition, and neither of the two law firms on record (Messrs Wanjama & Company Advocates and Kinyua Muyaa & Company Advocates) attended the hearing of 23rd February 2017; the application therefore proceeded unopposed. Counsel for the defendant relied on Mohammed & Anor v Haidara on the effect of unrebutted allegations, and on Time Magazine International Ltd on what constitutes a reasonable cause of action. He also invoked Justice Nyamweya's earlier ruling of 4th December 2015, in which she found an abuse of the court process but nonetheless consolidated the two suits because triable issues were raised. The court declined to delve into the merits, noted that a consolidated suit is deemed one suit, and, because the application was unopposed, allowed it in its entirety: the suit was struck out with costs to the Defendant.

Key legal issues

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01

Abuse of court process by filing two suits over the same subject matter

Holding

The court allowed the unopposed application to strike out the suit, relying on Justice Nyamweya's earlier finding of abuse of process despite the consolidation of the two suits.

Reasoning

The court noted the plaintiff filed no replying affidavit or grounds of opposition and neither of its two law firms attended the hearing. Earlier, Justice Nyamweya had found the filing of two suits over the same cause of action to be an abuse of process but had consolidated them because triable issues existed. On this unopposed application the judge declined to delve into the merits and allowed the application in its entirety.

p. 3
02

Effect of an unopposed application and unrebutted allegations

Holding

Where a respondent files no replying affidavit and makes no attempt to answer allegations, the allegations remain unrebutted and the unopposed application may be allowed.

Reasoning

Counsel relied on Mohammed & Anor v Haidara, where the appeal was allowed for lack of evidence from the respondent, and Spry V-P's holding that unrebutted allegations stand. The court observed that the plaintiff's advocates were served but failed to attend, and one firm, though intending to cease acting, remained on record without instituting proceedings to cease acting.

p. 2

Legal principles established

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  • Once two or more suits are consolidated, they are deemed one suit.
  • Allegations unrebutted by a replying affidavit remain unrebutted.

Court orders

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  1. 1.Civil Suit No. 60 of 2014, Kalka Flowers Limited v Equity Bank Limited, is struck out
  2. 2.Costs of the suit and of the application awarded to the Defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(1)(a)(b) and (d)

Cases cited (2)

  • Mohammed & Anor v Haidara
    Civil Appeal No. 42 of 1972 (1972) EA
  • Time Magazine International Ltd and Anor vs Michael F Rotich and Anor
Jurisdiction invoked
Original civil jurisdiction under Order 2 Rule 15(1)(a)(b) and (d) of the Civil Procedure Rules

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, "Kalka Flowers Limited v Equity Bank of Kenya [2017] KEELC 3056 (KLR)", Case Analysis (2017). Civil Suit No. 60 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3056/eng@2017-04-10

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