Geoffrey Mungai Thiongo v Elsie Ridge Limited & 4 others [2018] KEELC 1780 (KLR)
The bottom line
#The Environment and Land Court let a Spring Valley resident's challenge to a nine-floor apartment building proceed, rejecting attempts to strike it out or demand Kshs 22 million in security for costs.
What this practically means
#Executive summary
#Key legal issues
#Res judicata / effect of prior NET proceedings
The suit is not res judicata; the dismissal of NET Appeal No. 193 of 2016 did not bar the suit, which raises issues not raised before NET and outside NET's jurisdiction
NET dismissed the appeal on a preliminary objection, not on merit, finding it time barred and that the licence was issued to John Ligale and Bryan Ligale, not the 1st defendant. The plaintiff's suit was founded on materially different facts and different provisions of law, and raised several issues NET had no jurisdiction to determine. Striking-out grounds were therefore not established.
Non-disclosure of prior proceedings
The failure to mention the NET proceedings in the plaint did not warrant striking out the suit
The plaintiff and his advocate explained the omission as inadvertence attributable to the hurried manner of filing the suit. The court did not treat this non-disclosure as fatal; instead it considered the merits of the striking-out and security-for-costs applications and found the suit neither frivolous nor abusive.
Security for costs
The 2nd defendant's application for security for costs fails because no basis was laid for the assertion that the plaintiff could not pay costs
Security for costs is discretionary and not ordered as a matter of course; a proper basis must be laid. The plaintiff is a Kenyan resident within the court's jurisdiction who owns two parcels of land valued at over Kshs. 60 million, making him a person of means. The claim has fair prospects of success since the nine-floor building exceeded the four floors approved.
Legal principles established
#- An applicant for security for costs must first furnish proof that the respondent would be unable to pay his costs if successful in the suit
- Pleadings will only be struck out where the suit is frivolous, vexatious, an abuse of process or discloses no reasonable cause of action
Court orders
#- 1.The 1st defendant's Notice of Motion dated 11th January 2017 is dismissed
- 2.The 2nd defendant's Notice of Motion dated 11th January 2017 is dismissed
- 3.Costs of both applications awarded to the plaintiff
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit; the court noted 'the plaintiff averred that this court has jurisdiction to hear and determine this suit'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Geoffrey Mungai Thiongo v Elsie Ridge Limited & 4 others [2018] KEELC 1780 (KLR)", Case Analysis (2018). Not stated in the excerpt (Nairobi Environment and Land Court suit filed 19th December 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1780/eng@2018-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.