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ELCDismissedNot stated in the judgment as provided· [2019] KEELC 2313 (KLR)

Diasta Investments Limited v Nilesh Devan Kara Shah & 4 others [2019] KEELC 2313 (KLR)

Environment and Land Court
18 July 2019
2,406 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 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

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Executive summary

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The plaintiff, registered owner of L.R No. 1870/IX/184, sued the 1st to 3rd defendants (registered joint proprietors of the adjacent L.R No. 209/7584) together with the 4th and 5th defendants (approving authorities) over a ten-storey building erected allegedly in excess of approved eight-floor plans and the EIA Licence, seeking injunctions, demolition of two extra floors, damages and declarations. The 1st to 3rd defendants, who had never filed a defence, brought a Notice of Motion dated 21st November 2013 under Order 2 Rule 15(1)(d) of the Civil Procedure Rules, 2010 seeking striking out of the plaint as an abuse of process, arguing the plaintiff had failed to exhaust alternative statutory remedies (appeals to the Physical Planning Liaison Committee and the National Environment Tribunal) as identified in the court's ruling of 18th February 2013 staying the plaintiff's injunction application. The plaintiff opposed, contending among other things that the applicants lacked standing absent a defence. S. Okong'o J dismissed the application. He held the plaint raised weighty environmental, planning and constitutional issues and was neither pretenceless nor absolutely groundless; that findings in an interlocutory ruling are not binding on the trial court; that only the injunction application, not the suit, had been stayed; and that without a defence on record the applicants could not attack the merits. The application was dismissed with costs to the plaintiff.

Key legal issues

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01

Whether the plaint was an abuse of the process of the court due to non-exhaustion of alternative statutory remedies

Holding

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

Reasoning

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.

p. 3
02

Whether defendants without a defence on record could seek striking out of the plaint

Holding

Without a defence on record, there is no basis to attack the merits of the plaintiff's claim

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The 1st, 2nd and 3rd defendants' Notice of Motion dated 21st November 2013 is dismissed
  2. 2.Costs of the application awarded to the plaintiff

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 2 Rule 15(1)(d)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Physical Planning Act, Chapter 286 Laws of KenyaForms P.P.A 8 and P.P.A 9 (referenced by the 3rd defendant)
  • Environmental Management and Co-ordination Act, Chapter 387 Laws of KenyaNational Environment Tribunal; Public Complaints Committee
  • Constitution of Kenyafundamental rights (right to clean and healthy environment)

Cases cited (1)

  • D. T. Dobie & Company (K) Ltd. v Joseph Mbaria Muchina & Another
    (1982) KLR 1
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

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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, "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.