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ELCDismissedHCCC No. 12 of 2006 (transferred to Malindi ELRC/ELC)· [2019] KEELC 1565 (KLR)

Fernando Vischi & another v Albert Mukare Mulewa & 6 others [2019] KEELC 1565 (KLR)

Environment and Land Court
8 October 2019
JOJ.O. Olola
1,601 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Malindi (Olola J) on a Notice of Motion dated 17th October 2018 by the 7th Defendant, Dreamgeast Ltd, seeking to strike out the Plaintiffs' suit against the 1st to 5th Defendants and to strike out Mumbu Holdings Ltd's Counterclaim. The underlying dispute concerns ownership of two parcels, Chembe/Kibabamshe/387 and 406, purchased under sale agreements of 25th July 2005, with competing claims by the Plaintiffs, the 6th Defendant and the 7th Defendant, the latter registered as owner in May 2007. Dreamgeast argued the suit was unsustainable following Ouko J's ruling of 2006, that the Counterclaim was unsustainable for want of relief and joinder, that Mumbu Holdings was estopped having withdrawn Malindi HCCC No. 78 of 2006 without paying costs, and that the Counterclaim was time-barred in light of Angote J's 2013 judgment. Five days after the application, the Plaintiffs discontinued the suit against the 1st to 5th Defendants. Mumbu Holdings opposed, asserting it had been properly enjoined in 2006 and that its withdrawal of the Malindi suit was to avoid sub-judice proceedings. Holding that the primary duty of the court is substantive justice, and that the circumstances of the cancellation of the 6th Defendant's title and registration of the 7th Defendant could not be dismissed as a sham at this stage, the court found no merit in the application, dismissed it with costs to the 6th Defendant, and directed that the suit proceed as between the Plaintiffs and the 5th, 6th and 7th Defendants.

Key legal issues

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01

Whether the 6th Defendant's Counterclaim should be struck out as unsustainable, abusive or time-barred

Holding

The application to strike out the Counterclaim failed; the dispute over title between the parties raises matters fit for trial

Reasoning

The court noted the long history of the suit and that the dispute concerns who between the Plaintiffs, 6th and 7th Defendants was the rightful owner of the suit properties. The 6th Defendant's title was cancelled and the 7th Defendant registered in May 2007; the circumstances of that cancellation could not be characterised as a sham at interlocutory stage. The court prioritised substantive justice and declined to strike out the Counterclaim, dismissing the application with costs to the 6th Defendant.

p. 3
02

Whether the 6th Defendant was estopped from bringing a Counterclaim having withdrawn Malindi HCCC No. 78 of 2006

Holding

The court did not accept the estoppel argument as a basis for striking out the Counterclaim

Reasoning

The 7th Defendant argued that the 6th Defendant, having voluntarily withdrawn Malindi HCCC No. 78 of 2006 on 7th September 2007 and never paid costs, was estopped from claiming rights over the suit properties on which it had since made substantial investments. The 6th Defendant explained that the withdrawal was to avoid sub-judice proceedings after discovering the current suit. The court did not find merit in striking out on this basis.

p. 2

Legal principles established

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  • The primary duty of a court is to ensure substantive justice is served to all parties before it, and striking out pleadings should not be done where bona fide triable issues exist

Court orders

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  1. 1.The 7th Defendant's Notice of Motion dated 17th October 2018 is dismissed
  2. 2.Costs of the application to the 6th Defendant
  3. 3.The suit shall proceed as between the Plaintiffs and the 5th, 6th and 7th Defendants

Authorities

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Legislation

  • Limitation of Actions Actnot specified

Cases cited (2)

  • Malindi HCCC No. 78 of 2006
  • Malindi Misc. Application No. 27 of 2012
Jurisdiction invoked
Original civil jurisdiction over land disputes transferred from the High Court (HCCC No. 12 of 2006, Mombasa) pursuant to transfer order of 24th October 2017

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Fernando Vischi & another v Albert Mukare Mulewa & 6 others [2019] KEELC 1565 (KLR)", Case Analysis (2019). HCCC No. 12 of 2006 (transferred to Malindi ELRC/ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1565/eng@2019-10-08

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