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ELCStruck OutELC Case (Mombasa), Notice of Motion dated 23rd April 2018· [2019] KEELC 4505 (KLR)

Abdihamid Sheikh Abdulla t/a Jambo Matt Supermarket & 2 others v Tecno Holdings Limited & 2 others [2019] KEELC 4505 (KLR)

Environment and Land Court
22 February 2019
AOA. Omollo
1,336 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out a duplicate rent-distress suit, warning litigants against filing fresh cases over disputes already decided in earlier, pending suits.

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 Mombasa (A. Omollo J) on a notice of motion dated 23rd April 2018 by the plaintiffs, subtenants of the 1st defendant, seeking a permanent order restraining the 3rd respondent (auctioneer) from attaching their goods on plot L.R Mombasa BLOCK/XX/328/329 pursuant to a backdated proclamation issued in a distress for rent instigated by the 2nd defendant, NSSF. The 1st defendant supported the application, citing a rent dispute referable to arbitration and the absence of the notice required under section 23 of the Distress for Rent Act before an undertenant may be asked to pay rent directly. NSSF opposed, contending the application was res judicata and subjudice, a similar injunction application in ELC No 377 of 2017 having been dismissed on merit on 10th April 2018 by Komingoi J, with an appeal dismissed on 12th July 2018 and liberty granted to levy distress. The court framed three issues: res judicata, subjudice, and merit. It found the applicants were subtenants within the group that litigated through the plaintiffs in ELC 377 of 2017, making the motion res judicata under section 7 of the Civil Procedure Act, and held the suit subjudice under section 6 since the issues could be raised in the pending case. Suo moto, the court struck out the application and the entire suit, with costs to the 2nd defendant, and directed the plaintiffs to ventilate their claim by joining ELC Case No 377 of 2017. The merits of the injunction were not determined.

Key legal issues

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01

Whether the application is res judicata

Holding

Yes - the applicants fall within the group of persons who litigated through the plaintiffs in ELC Case No 377 of 2017, where a similar injunction application against the distress was heard and dismissed on merit

Reasoning

The pleadings in ELC 377 of 2017 showed four subtenants challenging the same distress by the 2nd defendant. The applicants here are equally subtenants and would have benefited had the earlier application succeeded. A similar application dated 17th October 2017 had been determined with costs by Komingoi J on 10th April 2018, so the present motion is res judicata under section 7 of the Civil Procedure Act and a candidate for striking out.

p. 2
02

Whether the suit is subjudice

Holding

Yes - the issues raised can be raised in the pending ELC Case No 377 of 2017, contravening section 6 of the Civil Procedure Act

Reasoning

The court held that the issues in this suit could be ventilated in the still-pending ELC 377 of 2017, so the filing contravened section 6. Filing the application after dismissal of the earlier one was abuse of court process. The court, suo moto, struck out the newer suit and directed the plaintiffs to join ELC 377 of 2017.

p. 2
03

Whether the injunction application is merited

Holding

Not determined - it was unnecessary after findings on res judicata and subjudice

Reasoning

Having found the application res judicata and the suit subjudice, the court declined to determine the third issue of merit. No findings were made on the Distress for Rent Act, subtenancy notice under section 23, tools of trade, or the equities of the renovations argued by counsel.

p. 2

Legal principles established

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  • A person who could have litigated through plaintiffs in an earlier suit is bound by the res judicata doctrine under section 7 of the Civil Procedure Act
  • Instituting two suits over the same cause of action is an abuse of court process

Court orders

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  1. 1.The application dated 23.4.2018 and the entire suit be and is hereby struck out with costs to the 2nd defendant

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(e), 6, 7
  • Civil Procedure RulesOrder 40 rule 1
  • Distress for Rent ActSection 23

Cases cited (2)

  • Tecno Holdings Ltd & others vs NSSF (ELC No 377 of 2017)
  • Abud Abdalla & 28 others vs Kenya Ports Authority & Another (Malindi Court of Appeal No 99 of 2017)
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 40 rule 1 of the Civil Procedure Rules; sections 6 and 7 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, "Abdihamid Sheikh Abdulla t/a Jambo Matt Supermarket & 2 others v Tecno Holdings Limited & 2 others [2019] KEELC 4505 (KLR)", Case Analysis (2019). ELC Case (Mombasa), Notice of Motion dated 23rd April 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4505/eng@2019-02-22

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