Enkare Hotel Limited v Muchewa Limited & 2 others [2020] KEELC 2523 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that repeatedly filing the same lawsuit, even if you later withdraw the cases, is an abuse of court process that gets your suit struck out with costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the filing of multiple successive suits (BPRT No. 168 of 2016, BPRT No. 831 of 2017, CMCC No. 1198 of 2018, ELC No. 20 of 2019 and CMCC No. 759 of 2019) by the Appellant amounted to an abuse of the process of the court
Yes. The successive suits seeking similar injunctive orders, though some were withdrawn, constituted an abuse of process, and the trial magistrate applied the correct principles in so finding.
The court traced the sequence of suits: the Appellant obtained injunctions in the BPRT, then in CMCC 1198 of 2018 (vacated on appeal by Eboso J in ELC Appeal No. 26 of 2018), then filed ELC No. 20 of 2019, and upon the Judge noting the similarity of the cases, withdrew the pending suits and filed CMCC 759 of 2019 seeking the same injunctive reliefs. Relying on Muchanga Investments, the court held that a multiplicity of actions on the same matter between the same parties is an abuse of judicial process. The Appellant's conduct, including a frivolous and vindictive criminal complaint, reinforced this conclusion.
Whether the suit offended sections 6 and 7 of the Civil Procedure Act (sub-judice and res judicata)
Yes. As the suit sought injunctive orders, an issue already determined with finality by Eboso J on appeal, it was res judicata; and CMCC No. 1198 of 2018 was still pending when the suit was filed, offending section 6.
The court found that Eboso J's judgment in ELC Appeal No. 26 of 2018 determined the issue of injunction with finality, so the same issue could not be raised in a subsequent suit. Further, there was no evidence that the notices of withdrawal of the pending cases were brought to the trial magistrate's attention, and the Appellant's own submissions made no mention of the withdrawals. The trial magistrate was therefore right to hold that CMCC 1198 of 2018 remained pending, contrary to section 6. Even had the withdrawals been proved, the suit would still have failed as an abuse of process.
Legal principles established
#- Instituting a multiplicity of actions on the same matter between the same parties, even if subsequently withdrawn, constitutes an abuse of the process of the court
- Where an issue of injunction has been determined with finality in a prior suit, the same issue cannot be raised in a subsequent case between the same parties
- Withdrawal of earlier pending suits does not cure an abuse of process already committed
Court orders
#- 1.The Appellant's appeal was dismissed with costs to the 1st and 2nd Respondents
- On appeal from
- Chief Magistrate's Court at Milimani
- Milimani CMCC No. 759 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrate's Court under the Environment and Land Court Act (appeal against the ruling of the Principal Magistrate)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Enkare Hotel Limited v Muchewa Limited & 2 others [2020] KEELC 2523 (KLR)", Case Analysis (2020). ELC Appeal No. 29 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2523/eng@2020-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.