Diasta Investments Limited v Nilesh Devan Kara Shah & 4 others [2019] KEELC 2313 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to throw out a construction dispute lawsuit, ruling that a suit can only be struck out if it is obviously hopeless.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaint was an abuse of the process of the court due to non-exhaustion of alternative statutory remedies
The plaint is not an abuse of process; the earlier ruling only stayed the interlocutory injunction application, not the suit, and the plaintiff was free to proceed with the main suit
The court held that the ruling of 18th February 2013 dealt only with an interlocutory application and its findings are not binding on the trial court. The suit itself was never stayed, so the plaintiff could abandon the injunction application and proceed to trial. Further, the plaint raises constitutional and environmental claims which only this court can redress, so non-exhaustion of statutory appeal mechanisms did not defeat the suit.
Whether defendants without a defence on record could seek striking out of the plaint
Without a defence on record, there is no basis to attack the merits of the plaintiff's claim
The 1st to 3rd defendants had not filed a defence despite the setting aside of the interlocutory judgment. The court agreed with the plaintiff that the applicants could not, in the absence of a defence, contend that the claim was groundless or hopeless. The plaint raised weighty environmental, planning and constitutional issues that were neither pretenceless nor absolutely groundless.
Legal principles established
#- Interlocutory findings, including a finding that alternative statutory remedies existed, are not binding on the trial court and do not render the suit an abuse of process where the suit itself was not stayed
- A suit should only be struck out where it is plainly and obviously hopeless and incurable by amendment
Court orders
#- 1.The 1st, 2nd and 3rd defendants' Notice of Motion dated 21st November 2013 is dismissed
- 2.Costs of the application awarded to the plaintiff
- Jurisdiction invoked
- Original civil jurisdiction over a claim concerning land, environment and fundamental rights; application brought under Order 2 Rule 15(1)(d) of the Civil Procedure Rules, 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Diasta Investments Limited v Nilesh Devan Kara Shah & 4 others [2019] KEELC 2313 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2313/eng@2019-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.