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ELCDismissedELC Case (Machakos) – Motion dated 8th May 2017 (number not stated in judgment)· [2018] KEELC 3857 (KLR)

Labh Singh Harman Singh Limited v Denancy Investment Limited & 7 others [2018] KEELC 3857 (KLR)

Environment and Land Court
13 April 2018
OAO.A. Angote
1,098 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed an attempt to strike out a land fraud suit, ruling the earlier petition wasn't decided on its merits.

What this practically means

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Executive summary

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The 4th and 5th Defendants brought a Notice of Motion dated 8th May 2017 seeking the striking out and dismissal of the suit against them with costs, on the grounds that the suit was res judicata Petition No. 210 of 2010 (which had been struck out with costs and against which the Plaintiff had lodged an appeal to the Court of Appeal), that the 5th Defendant ought to have been sued through his agent the 4th Defendant, and that the suit was frivolous, vexatious and an abuse of the court process given that the Plaintiff admitted being defrauded by a third party who, along with the fraudster's advocate, had been charged following police investigation. The 2nd Defendant supported the application, while the Plaintiff responded that the Applicants were not parties to the Petition, that the Petition was struck out on a technicality and not heard on merit, and that the issues in the suit concern fraudulent sale of land. Relying on Section 7 of the Civil Procedure Act and the Court of Appeal's statement of the ingredients of res judicata in John Florence Maritime Services, the court (O.A. Angote, J) held that since the Petition was struck out solely for procedural reasons without any determination of the fraud or entitlement issues, and since the Applicants were not parties to the Petition, the suit could not be res judicata. The court further held that the fraud allegations are matters for trial and that the criminal proceedings could only form part of the evidence. The application was dismissed with costs on 13th April 2018 in Machakos.

Key legal issues

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01

Whether the suit is res judicata Petition No. 210 of 2010

Holding

The suit is not res judicata because the Petition was struck out on a procedural ground without determination on the merits, and the Applicants were not parties to the Petition.

Reasoning

Section 7 of the Civil Procedure Act, as explained in John Florence Maritime Services, requires the same issues, the same parties litigating under the same title, and a competent court that determined the former suit finally. The Petition was struck out solely because it should have been commenced by plaint; the court never decided the fraud or entitlement questions. Those issues remain pending before the Court of Appeal only as to whether the Petition was properly before the court, not the merits. The Applicants were also not parties to the Petition.

p. 2
02

Whether the suit is frivolous, vexatious and an abuse of process warranting dismissal

Holding

The mere fact that police investigated and charged another person with the fraudulent dealings is not a basis for dismissing the civil suit.

Reasoning

The allegation that the Defendants were involved in the fraudulent sale of the suit land is a matter for determination at trial. The pendency of a criminal case against the plaintiff's alleged fraudster does not extinguish the civil claim; the criminal proceedings and judgment, once determined, may only be adduced as evidence in this matter. The suit against the Applicants therefore discloses issues properly triable by this court.

p. 2

Legal principles established

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  • A suit struck out without hearing the merits cannot found a plea of res judicata.
  • Res judicata requires identity of parties; a person not party to the former suit cannot invoke it.
  • Criminal proceedings over fraud relating to the suit land do not bar the civil suit; they may only form part of the evidence at trial.

Court orders

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  1. 1.The Application dated 8th May 2017 is dismissed
  2. 2.Costs of the Application awarded to the Plaintiff (against the Applicants)

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (1)

  • John Florence Maritime Services Limited & Another vs. Cabinet Secretary for Transport and Infrastructure & others
    (2015) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land disputes; application under civil procedure seeking striking out of suit

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, "Labh Singh Harman Singh Limited v Denancy Investment Limited & 7 others [2018] KEELC 3857 (KLR)", Case Analysis (2018). ELC Case (Machakos) – Motion dated 8th May 2017 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3857/eng@2018-04-13

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