Michael Kungu Kigia v Meru Teachers House Ltd Diretors Edward Dick Mugambi (Managing Director) & 12 others [2018] KEELC 4467 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a landlord's suit entirely because he hid 37 previous cases and lied in his verifying affidavit.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over the contempt application and plaint
The suit was filed in contravention of Sections 6 and 7 of the Civil Procedure Act and Order 4 of the Civil Procedure Rules; the preliminary objection on jurisdiction succeeds
The plaintiff admitted in his own submissions that orders were issued by other Judges, Magistrates and Tribunals in multiple pending and concluded cases between the same parties. His verifying affidavit falsely stated that no other suit was pending. Sub judice and res judicata provisions were thereby offended, ousting the court's jurisdiction.
Whether the plaintiff has a cause of action
No cause of action was established; the claim was scattered across myriad cases in tribunals, magistrates' courts and the High Court, and the plaintiff did not rebut the defence's record of 37 cases
A cause of action requires establishing a right and demonstrating its violation. The plaintiff could not pinpoint when the cause of action arose and the court was not privy to proceedings in the other courts. Reinstatement could not be ordered where eviction occurred pursuant to an order of a court of competent jurisdiction.
Abuse of court process and striking out
The plaint and Notice of Motion are incompetent, frivolous, vexatious, bad in law and an abuse of the court process warranting dismissal
Applying the test in Josephat Kipchirchir Sigilai, the court found the clearest of cases: the plaintiff swore a false verifying affidavit, filed a multiplicity of suits over the same subject matter, and offered no logical explanation for filing this suit instead of pursuing relief in the suits where the orders sought are contained.
Legal principles established
#- A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion is sought
- A litigant must disclose other pending or previous proceedings between the same parties over the same subject matter in the verifying affidavit, failing which the suit contravenes Sections 6 and 7 of the Civil Procedure Act and Order 4 rule 1(f) of the Civil Procedure Rules
- A verifying affidavit inconsistent with the particulars in the plaint renders the suit incompetent; misleading the court is an abuse of process
- Striking out a suit is a draconian measure reserved for the clearest of cases of abuse of the court process
Court orders
#- 1.Both Notice of Motion and the Suit filed in two sets, the one of 13/2/2017 and the one of 24/2/2017 are hereby dismissed with costs to defendants
- Jurisdiction invoked
- Environment and Land Court jurisdiction; matter found to offend Sections 6 and 7 of the Civil Procedure Act (Cap 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Kungu Kigia v Meru Teachers House Ltd Diretors Edward Dick Mugambi (Managing Director) & 12 others [2018] KEELC 4467 (KLR)", Case Analysis (2018). Meru ELC Case No. 20 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4467/eng@2018-01-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.