The Registered Trustees Bhagwanji Raja Charitable Foundation & another v Coast Computer Bureau Limited [2020] KEELC 1794 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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
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.
Whether dismissal or stay is the appropriate remedy under Section 6 of the Civil Procedure Act
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
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.
Legal principles established
#- 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
#- 1.The two suits (this suit and Mombasa HCCC No. 209 of 2008) be consolidated
- 2.Further directions on how the two cases are to proceed to be given on a date after delivery of the ruling
- 3.Costs of the application to be costs in the cause
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 6 of the Civil Procedure Act, Cap 21, Laws of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Hadev Kalsi Singh v Ilam Din S/O Umar Din & 4 Others [2015] KEELRC 534 (KLR)[2015] KEELRC 534 (KLR)23 Jul 2015applied
Cite this brief
#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.