Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherPetition dated 22nd November 2017 (Malindi)· [2018] KEELC 2846 (KLR)

Bhavasar Anadkumar t/a Sarax Enterprises v Beloilco Holdings Ltd & 3 others [2018] KEELC 2846 (KLR)

Environment and Land Court
28 June 2018
JOJ.O. Olola
3,108 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed a property rights petition as an abuse of process and ruled you cannot freely withdraw a case once it has been set down for hearing.

What this practically means

#

Executive summary

#
The Petitioner, Bhavasar Anadkumar T/A Sarax Enterprises, petitioned the Environment and Land Court at Malindi alleging violation of his constitutional rights to property under Articles 40 and 64 after persons acting for the 1st Respondent, with police assistance, evicted his caretaker from LR No. 13053 Kilifi. The Petitioner claimed title through a public auction conducted in execution of Mombasa HCCC No. 146 of 2015 (Genton AG v Bileilco Holdings Ltd) and a Vesting Order issued on 5th October 2016. He sought declarations, a permanent injunction, general damages, costs and interest, and obtained interim conservatory orders on 23rd November 2017. The 1st Respondent applied to set aside those orders, revealing that the Vesting Orders had been declared fraudulent, null and void and expunged from the record in the Mombasa suit, in which the Petitioner had participated as an Interested Party. The interim orders were discharged in the interim and the 1st Respondent reinstated pending ruling. Before the ruling was delivered, new advocates filed a Notice of Withdrawal of the Petition on behalf of the Petitioner. The Court held that since the Petition had been set down and heard, withdrawal required leave under Order 25 Rule 2(2) of the Civil Procedure Rules, and that the withdrawal was designed for ulterior purposes to circumvent due process. Invoking Section 3A of the Civil Procedure Act, the Court directed the DCI to investigate the Petitioner and his advocates, allowed the 1st Respondent's application of 27th November 2017, and dismissed the Petition as an abuse of Court process with costs to the Respondents.

Key legal issues

#
01

Right of withdrawal of suit after setting down for hearing

Holding

A plaintiff whose suit has been set down for hearing and heard cannot withdraw it as of right; leave of the Court is required, and leave was refused because the withdrawal was an attempt to subvert justice

Reasoning

Order 25 of the Civil Procedure Rules provides three scenarios for withdrawal. Before filing the Notice of Withdrawal, the Petition had been set down and heard and was pending determination, so Rule 2(2) applied. Given the serious allegations of forgery, perjury and misconduct arising from reliance on Vesting Orders already set aside, allowing withdrawal would circumvent due process.

p. 4
02

Abuse of Court process

Holding

The Petition was an abuse of process because the Petitioner, an Interested Party in Mombasa HCCC No. 146 of 2015, knew the Vesting Order he relied on had been set aside and expunged when he filed the Petition

Reasoning

The Petitioner's claim rested on a Vesting Order that had been declared fraudulent, null and void and expunged from the record in the Mombasa suit, in which he had participated. The subsequent Petition was therefore a deliberate attempt to abuse the Court's process, justifying dismissal with costs.

p. 4

Legal principles established

#
  • Where a suit has been set down for hearing and heard, a plaintiff may not withdraw or discontinue without leave of the Court under Order 25 Rule 2(2) of the Civil Procedure Rules
  • Where a party uses the right to discontinue a suit in a manner amounting to abuse of process or to defeat the ends of justice, the Court has power under Section 3A of the Civil Procedure Act to stop such abuse

Court orders

#
  1. 1.The Directorate of Criminal Investigations to carry out thorough investigations into the role played by the Petitioner, his Advocates Kenta Moitalel & Company Advocates and any necessary party in the filing and prosecution of the Petition in reliance on the impugned Vesting Orders, with a view to recommending appropriate action
  2. 2.The Deputy Registrar to forward a copy of the Court file to the Directorate of Criminal Investigations within 21 days
  3. 3.The 1st Respondent's application dated 27th November 2017 is allowed
  4. 4.The Petition is declared an abuse of the Court process and is dismissed with costs to the Respondents

Authorities

#

Legislation

  • Constitution of KenyaArticles 40 and 64
  • Civil Procedure ActSection 2; Section 3A
  • Civil Procedure RulesOrder 25 Rules 1, 2(1) and 2(2)

Cases cited (3)

  • John Ochanda –vs- Telkom Kenya Ltd
    SC APP No. 25 of 2014
  • Beijing Industrial Designing & Research Institution –vs- Lagoon Development Ltd
    (2015) eKLR
  • Genton AG –vs- Bileilco Holdings Ltd
    Mombasa HCCC No. 146 of 2015
Jurisdiction invoked
Articles 40 and 64 of the Constitution of Kenya (as invoked by the Petitioner); inherent powers under Section 3A of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Bhavasar Anadkumar t/a Sarax Enterprises v Beloilco Holdings Ltd & 3 others [2018] KEELC 2846 (KLR)", Case Analysis (2018). Petition dated 22nd November 2017 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2846/eng@2018-06-28

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