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ELCOtherMombasa ELCC (the suit commenced by plaint filed 2 October 2019); related suit: Mombasa HCCC No. 209 of 2008 (Hammond Holdings Limited vs Coast Computer Bureau Ltd)· [2020] KEELC 1794 (KLR)

The Registered Trustees Bhagwanji Raja Charitable Foundation & another v Coast Computer Bureau Limited [2020] KEELC 1794 (KLR)

Environment and Land Court
24 June 2020
2,276 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Mombasa court consolidated two landlord-tenant suits over the same property instead of dismissing the newer one, so all service charge and possession claims get decided together.

What this practically means

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Executive summary

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The plaintiffs sued by plaint filed on 2 October 2019 seeking accumulated service charge of KShs. 3,532,932/= for January 2014 to December 2018 under a 1993 long-term lease of Office No. 313 and Store No. 312 of Biashara Bank Building on Mombasa/Block/XXI/396 and 397, together with vacant possession on the basis that their right of re-entry had crystallised. The defendant filed an application dated 31 October 2019 seeking dismissal of the suit on the ground that the same parties were already litigating in Mombasa HCCC No. 209 of 2008, a part-heard suit in which the 2nd plaintiff claimed service charge from 2006 to 2013 (as amended) and vacant possession, and in which the defendant had filed a counterclaim challenging the transfer of the half share. The defendant argued sub judice, risk of conflicting decisions and perjury in the verifying affidavit; the plaintiffs opposed, contending the periods and causes of action differed and each breach is a fresh cause of action, and urged a stay rather than dismissal if the court found sub judice. Applying Sections 1A, 1B, 3A and 6 of the Civil Procedure Act, the court held that although each breach may found a separate suit, a continuing breach is best litigated in one suit; the vacant possession claims overlap and the service charge claims cover different periods. Dismissal being a drastic remedy, the just course was consolidation of the two suits with directions to follow, the court also advising the plaintiffs to consider amending their claim to cover service charge up to judgment. Costs of the application were made costs in the cause.

Key legal issues

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01

Whether a suit claiming service charge and vacant possession should be dismissed as sub judice given a part-heard earlier suit claiming the same reliefs for a different period

Holding

Dismissal refused; although each breach may constitute a separate cause of action, the interests of justice are best served by consolidating the two suits so that a once-and-for-all decision is given

Reasoning

The court accepted that every breach may be a separate cause of action, but held that a multiplicity of suits for a continuing breach does not augur well for the administration of justice. The claim for vacant possession in both suits arises from a similar breach; once determined in the earlier suit it cannot be revisited. The service charge claim for 2014–2018 is not covered by the earlier suit (2006–2013), so the plaintiffs should not be shut out. Consolidation avoids prejudice and allows all issues to be determined together.

p. 3
02

Whether dismissal or stay is the appropriate remedy under Section 6 of the Civil Procedure Act

Holding

Section 6 provides for stay of the later suit, but the court retains discretion to dismiss where the latter suit is an abuse of process; dismissal is drastic and reserved for the clearest of cases

Reasoning

The court interpreted Section 6 as directing a stay where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties. However, dismissal may be ordered in appropriate circumstances where the latter suit is an abuse of the court process. Because dismissal would deny the plaintiffs their claim for service charge accrued from 2014, which was not claimed in the earlier suit, consolidation rather than dismissal was ordered.

p. 2

Legal principles established

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  • Where there is a claim for a continuing breach spanning a period of time, it is best that one suit be filed covering the entire period of breach; where two suits already exist, consolidation and a once-and-for-all decision serves the interests of justice
  • Although Section 6 of the Civil Procedure Act provides for stay of the later suit, the court has discretion to dismiss it where the latter suit is an abuse of process, but dismissal being drastic should only issue in the clearest of cases

Court orders

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  1. 1.The two suits (this suit and Mombasa HCCC No. 209 of 2008) be consolidated
  2. 2.Further directions on how the two cases are to proceed to be given on a date after delivery of the ruling
  3. 3.Costs of the application to be costs in the cause

Authorities

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Legislation

  • Civil Procedure Act, Cap 21, Laws of KenyaSection 1A
  • Civil Procedure Act, Cap 21, Laws of KenyaSection 1B
  • Civil Procedure Act, Cap 21, Laws of KenyaSection 3A
  • Civil Procedure Act, Cap 21, Laws of KenyaSection 6
Jurisdiction invoked
Sections 1A, 1B, 3A and 6 of the Civil Procedure Act, Cap 21, Laws of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "The Registered Trustees Bhagwanji Raja Charitable Foundation & another v Coast Computer Bureau Limited [2020] KEELC 1794 (KLR)", Case Analysis (2020). Mombasa ELCC (the suit commenced by plaint filed 2 October 2019); related suit: Mombasa HCCC No. 209 of 2008 (Hammond Holdings Limited vs Coast Computer Bureau Ltd). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1794/eng@2020-06-24

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