Thomas Schiering v Nereah Micheal Said [2019] KEELC 791 (KLR)

The bottom line

A Mombasa court dismissed a landowner's attempt to block a suit on technical grounds, warning that recycling failed objections attracts punitive costs.

What this practically means

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Executive summary

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The plaintiff sued by plaint (filed 23 December 2016, later amended) seeking orders that two subdivisions of Kwale/Kinondo/755, namely Kwale/Kinondo/2458 and 2459, be registered in his name, an injunction restraining the defendant from dealing with them, and a declaration that her interest in them is extinguished. His case was that he acquired the parcel in 2007 with his ex-wife, who transferred it to him in the divorce settlement; it was registered in Rising Eagle Limited, a company formed by the plaintiff and the defendant; in 2012, on the defendant's advice, he transferred the land into the defendant's name to facilitate subdivision and sale, and by an agreement of 3 February 2012 she was to hold it in trust for him and be entitled to 12% of the purchase price of any sale. He alleged she sold Kwale/Kinondo/2460 for Kshs. 12,000,000/= without remitting the proceeds less 12%, and fraudulently retained the other portions. The defendant raised a preliminary objection that the plaintiff lacked locus standi, contending that he was suing on behalf of the company and that a director cannot sue for a company. The plaintiff maintained he sued in his own capacity. Munyao Sila J found the plaintiff prima facie suing on his own behalf, any contrary position being a matter for the hearing. Noting the identical objection had been raised and dismissed by Yano J in Mombasa ELC No. 442 of 2017 (ruling of 16 September 2019), the court held the objection unmerited and an abuse of process, dismissed it with punitive costs assessed at Kshs. 15,000/=, payable within 30 days, with a default sanction of declining to hear the defendant or consider her pleadings.

Key legal issues

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01

Locus standi of the plaintiff

Holding

The plaintiff is prima facie suing in his own capacity for his own interest; the objection that he sues on behalf of the company is misconceived and, if genuine, can only emerge at the hearing.

Reasoning

The court examined the plaint and found the plaintiff seeks orders that two subdivisions of Kwale/Kinondo/755 registered in the defendant's name be registered in his own name, with a disclosed personal stake arising from the divorce settlement and the 3 February 2012 trust agreement. Nothing on the face of the plaint shows him litigating for the company; any such issue is a matter for the hearing, not a preliminary objection.

p. 1

02

Re-litigation of the same objection and abuse of process

Holding

The identical locus objection was raised and dismissed by Yano J in Mombasa ELC No. 442 of 2017 (ruling of 16 September 2019); raising it again is unmerited and an abuse of process warranting punitive costs.

Reasoning

The court noted the defendant had already raised the same objection in a related suit where it was dismissed. Re-raising it merely vexes the plaintiff. The court expressed a need to deter parties from raising frivolous objections for the sake of it, and in its discretion assessed punitive costs at Kshs. 15,000/=, with a default sanction.

p. 2

Legal principles established

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At the interlocutory stage, where a plaint on its face discloses a plaintiff suing in his own capacity on his own interest, a preliminary objection on locus standi based on the plaintiff supposedly representing a company has no merit and can only be determined at the hearing if the point truly arises.
Raising a preliminary objection that has already been heard and dismissed in a related suit is an abuse of the court process and attracts punitive costs.

Court orders

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1.The preliminary objection is dismissed
2.Punitive costs assessed at Kshs. 15,000/= payable by the defendant within 30 days
3.In default of payment within 30 days, the court reserves discretion not to hear the defendant nor consider her pleadings

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, "Thomas Schiering v Nereah Micheal Said [2019] KEELC 791 (KLR)", Case Analysis (2019). Mombasa ELC (suit number not stated in the judgment text). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/791/eng@2019-11-13

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