Garden Estate Company Limited v Gulbanu D/O Hussein Jan Mohamed & 2 others [2017] KEELC 3131 (KLR)

Environment and Land Court

17 March 2017

MGMary M. Gitumbi

1,451 words in judgment

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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

The Defendants applied by Notice of Motion dated 12th March 2015 for the Plaint to be struck out, for a declaration that L.R. No. 209/2069/5 belongs to them as beneficiaries of the estate of the late Akbarali Gulamhussein Nanji, and for costs against the Plaintiff's director and advocates personally. They argued that the Plaintiff had been struck off the Companies Register on 14th November 1969 by Gazette Notice No. 3602 of 21st November 1969 and therefore did not exist as a juridical person capable of suing. The Plaintiff opposed, arguing the application was res judicata since a similar First Application had been dismissed on 2nd May 2014, and produced an order of 13th August 1971 in Civil Case No. 1634 of 1970 restoring it to the register. The court accepted that a similar application had been dismissed and characterised the Second Application as in substance one for review of that ruling under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010. It held the Defendants had not established new and important matter entitling them to review, because although the Plaintiff had been struck off in 1969, it was subsequently reinstated by court order in 1971 and could carry on business. The Plaintiff had rebutted the allegation of non-existence. The Second Application was dismissed with costs to the Plaintiff; no declaration over the property was granted.

Key legal issues

Whether the Second Application, dismissed on similar relief but new grounds, is res judicata

Holding

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

Reasoning

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.

p. 2

Whether the Plaintiff exists as a juridical person capable of suing

Holding

Yes; the 1969 striking off was superseded by the 1971 reinstatement order

Reasoning

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.

p. 3

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

Authorities

Legislation

Civil Procedure ActSection 80
Civil Procedure Rules, 2010Order 45 Rule 1

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

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.