Garden Estate Company Limited v Gulbanu D/O Hussein Jan Mohamed & 2 others [2017] KEELC 3131 (KLR)
The bottom line
#The Environment and Land Court dismissed an attempt to strike out a land suit, confirming the company plaintiff legally existed because a 1971 court order had restored it to the Companies Register.
What this practically means
#Executive summary
#Key legal issues
#Whether the Second Application, dismissed on similar relief but new grounds, is res judicata
The court treated the application as one for review of the earlier ruling rather than as strictly res judicata, then applied the review thresholds under Section 80 of the Civil Procedure Act and Order 45 Rule 1
The court accepted that a similar striking-out application had earlier been dismissed. It found that the new grounds (the Plaintiff's alleged striking off) were in substance a bid for review of that ruling. It then tested the new matter: although the Plaintiff was struck off in 1969, it was restored by court order in Civil Case No. 1634 of 1970 on 13th August 1971, so the Defendants' new ground failed on the merits.
Whether the Plaintiff exists as a juridical person capable of suing
Yes; the 1969 striking off was superseded by the 1971 reinstatement order
The Defendants relied on Gazette Notice No. 3602 of 21st November 1969 striking the Plaintiff off the Companies Register. The Plaintiff produced the order in Civil Case No. 1634 of 1970 issued on 13th August 1971 reinstating it. The court held the Plaintiff rebutted the allegation of non-existence and the evidential burden shifted back to the Defendants, who failed.
Legal principles established
#- A party is entitled to review of an earlier ruling only upon discovery of new and important matter or evidence not within their knowledge despite due diligence, or an error apparent on the face of the record, or any other sufficient reason
- A court order reinstating a company to the Companies Register restores its capacity to sue and sustain suit
Court orders
#- 1.The Defendants' Notice of Motion dated 12th March 2015 (the Second Application) is dismissed
- 2.Costs of the Second Application awarded to the Plaintiff
- Jurisdiction invoked
- Original civil suit jurisdiction; Civil Procedure Act and Civil Procedure Rules, 2010 (Order 45 Rule 1) invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Garden Estate Company Limited v Gulbanu D/O Hussein Jan Mohamed & 2 others [2017] KEELC 3131 (KLR)", Case Analysis (2017). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3131/eng@2017-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.