Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedPetition dated 26th February 2015 (case number not stated in the judgment)· [2019] KEELC 4855 (KLR)

Michael Andrew Suter v Leila James Van Rosi (alias Leila Ibrahim Khan), Lekev Holdings Limited, Milfan Developers Limited, Abdulhakim Abdalla, Land Registrar Mombasa & Attorney General (Environment & Land Case 315 of 2015) [2019] KEELC 4855 (KLR)

Environment and Land Court
24 January 2019
CYC. Yano
1,887 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court struck out a land claim re-fighting an earlier case, confirming that litigation over the same property must come to an end.

What this practically means

#

Executive summary

#
The 4th Respondent, Abdulhakim Abdalla, applied by notice of motion dated 14th September 2017 under Order 2 Rule 15 of the Civil Procedure Rules and Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act to have the Petitioner's suit against him struck out as scandalous, frivolous, vexatious and an abuse of process. He asserted he was a bona fide purchaser for value and registered owner of Plot No.1610/MN, Nyali, having bought it from the 3rd Respondent, Milfan Developers Limited, without notice of the Petitioner's claim, and that the Petitioner's claim over the same property had already been determined in Mombasa HCCC No.151 of 2006, where the court declared the Petitioner had no lawful claim over the plot and ordered his eviction. The Petitioner, Michael Andrew Suter, opposed, contending the Applicant was not a purchaser without notice, that due diligence would have revealed encumbrances, that prior transfers were fraudulent and collusive, and that the annexed decision was a ruling without a decree and involved different parties. The court applied DT Dobie v Muchina and Yaya Towers v Trade Bank, framing the test as whether the pleading raises triable issues. It found the ruling in HCCC No.151 of 2006 over the same property had never been reviewed or set aside, that litigation must come to an end, and that it could not sit on appeal over the High Court's decision. It held the petition hopeless, frivolous, vexatious and an abuse of process, allowed the motion, struck out the suit against the 4th Respondent with costs on 24th January 2019.

Key legal issues

#
01

Principles governing striking out pleadings under Order 2 Rule 15

Holding

The overriding consideration is whether the pleading raises triable issues; striking out is reserved for plain and obvious cases that are beyond redemption

Reasoning

The court applied DT Dobie v Muchina, holding that the power to strike out must not be used to determine merits and should aim at sustaining suits. However, where a claim is demonstrably an abuse of process, the court has inherent jurisdiction to terminate it. A plaintiff may pursue even an improbable claim unless the defendant shows shortly and conclusively that it is bound to fail or is an abuse of process.

p. 2
02

Whether the Petitioner's claim against the 4th Respondent was res judicata / an abuse of process given HCCC No.151 of 2006

Holding

Yes - the same property had been the subject of a determination in HCCC No.151 of 2006, which was never reviewed or set aside, so re-litigating it was vexatious

Reasoning

The court found that the Petitioner claimed the same property determined in Mombasa HCCC No.151 of 2006, where the court declared the Petitioner had no lawful claim over Plot No.1610/I/MN. There was no evidence of review or setting aside. A subordinate-tier court cannot sit on appeal over a High Court decision, and the proper forum for challenge was a superior court.

p. 2

Legal principles established

#
  • Litigation must come to an end; a suit ends when a court has rendered a decision which has been acted upon or executed
  • Striking out power should be exercised only where a suit is beyond redemption and incurable by amendment, without embarking on the merits

Court orders

#
  1. 1.The Notice of Motion dated 14th September 2017 is allowed
  2. 2.The suit against the 4th Respondent is struck out
  3. 3.Costs of the application and the struck-out claim to the 4th Respondent

Authorities

#

Legislation

  • Civil Procedure RulesOrder 2 Rule 15
  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)

Cases cited (3)

  • DT Dobie & Company (Kenya) Ltd –v- Muchina
    (1982) KLR
  • Yaya Towers Limited –v- Trade Bank Limited (in liquidation)
    (2000) eKLR
  • Milfan Developers Ltd –V- Michael Suter
    Mombasa HCCC No. 151 of 2006 (ruling dated 1st March 2007)
Jurisdiction invoked
Not expressly invoked; application brought under Order 2 Rule 15 of the Civil Procedure Rules and Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Michael Andrew Suter v Leila James Van Rosi (alias Leila Ibrahim Khan), Lekev Holdings Limited, Milfan Developers Limited, Abdulhakim Abdalla, Land Registrar Mombasa & Attorney General (Environment & Land Case 315 of 2015) [2019] KEELC 4855 (KLR)", Case Analysis (2019). Petition dated 26th February 2015 (case number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4855/eng@2019-01-24

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