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ELCStruck OutNot stated in extract (Mombasa ELC, notice of motion dated 5th May 2017)· [2018] KEELC 4718 (KLR)

Halima Amir Boi v Obadiah Otieno Wesong & 2 others [2018] KEELC 4718 (KLR)

Environment and Land Court
16 January 2018
AOA. Omollo
1,346 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a land suit because the same ownership and fraud disputes had already been decided in earlier, unappealed court cases.

What this practically means

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Executive summary

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The 2nd defendant moved the Environment and Land Court at Mombasa under Order 2 rule 15(1)(b), (c) and (d) of the Civil Procedure Rules seeking striking out of the plaintiff's plaint of 22nd April 2013 as an abuse of process, on the ground that the plaintiff was not the owner of the suit property, Kwale/Galu Kinondo/724. The 2nd defendant deposed that Amir Ali Boy (deceased), father of the plaintiff, subdivided the original parcel 677 and sold portions to purchasers including the 1st defendant; Amir's complaint of fraud was disproved in criminal proceedings in which he was convicted of giving false information, and his judicial review application for mandamus (Mombasa HCC Misc. No. 131 of 1991) was struck out and its orders set aside by Wambilyangah J on 23rd November 1992, with no appeal lodged. The plaintiff, through her attorney John Muthini Kamia, asserted title by inheritance under a will and alleged fraudulent transfer, urging that the suit proceed to trial. Omollo J restated the D.T. Dobie principle that striking out is draconian and used sparingly, but found the plaint fatally defective: the plaintiff's title derived by inheritance from rights extinguished by the 1992 High Court decision and the criminal conviction, both unappealed. The suit offended res judicata and no amendment could save it. The plaint was struck out and costs of the suit and application awarded to the 2nd defendant/applicant, judgment delivered at Mombasa on 16th January 2018.

Key legal issues

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01

Whether the plaint should be struck out under Order 2 rule 15

Holding

Yes - the plaint is an abuse of the court process and was struck out

Reasoning

The test in D.T. Dobie requires that striking out be used sparingly and only where no amendment can save the suit. Here the plaintiff's claimed title derives solely from inheritance from Amir Ali Boy, whose rights over the suit property had been extinguished by a valid High Court decision and confirmed criminal findings. No amendment could breathe life into the suit.

p. 2
02

Res judicata

Holding

The issues of ownership and fraud were determined in Mombasa HCC Misc. No. 131 of 1991 and in criminal proceedings; no appeal was filed and the decisions stand

Reasoning

Wambilyangah J set aside the mandamus orders and directed re-registration of the purchasers, finding the mandamus application an abuse of process. Separately, Amir Ali Boy was convicted of giving false information after it was proved he executed the transfer documents. He appealed neither. The plaintiff, bound by those outcomes through her deceased father, could not relitigate the same issues.

Legal principles established

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  • Striking out a suit is a draconian measure to be used sparingly, and only where the suit is completely hopeless and cannot be cured by amendment
  • Matters determined by a court of competent jurisdiction, with no appeal lodged, are res judicata and cannot be relitigated; suits that offend res judicata are an abuse of process

Court orders

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  1. 1.The plaint dated 22nd April 2013 is struck out as an abuse of the court process
  2. 2.Costs of the suit and the application awarded to the 2nd defendant/applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 rule 15(1)(b), (c) & (d)
  • Civil Procedure RulesOrder VI rule 13 (as cited in the 1992 ruling)

Cases cited (1)

  • D.T. Dobie (Kenya) Limited vs Muchina
    (1982) KLR 1
Jurisdiction invoked
Order 2 rule 15(1)(b), (c) & (d) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Halima Amir Boi v Obadiah Otieno Wesong & 2 others [2018] KEELC 4718 (KLR)", Case Analysis (2018). Not stated in extract (Mombasa ELC, notice of motion dated 5th May 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4718/eng@2018-01-16

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