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ELCStruck Out· [2021] KEELC 2399 (KLR)

Borop Multipurpose Co-operative Society Limited v Doune Farm Limited & 6 others [2021] KEELC 2399 (KLR)

Environment and Land Court
28 July 2021
4,932 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a land dispute suit because it duplicated another case, repeated an already-decided matter, and was filed too late.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (J M Mutungi, J) determined the 1st to 5th defendants' Notice of Motion dated 8th December 2020 under Order 2 rule 15 and Order 4 rule 6 of the Civil Procedure Rules and Section 7 of the Limitation of Actions Act, seeking striking out of the plaintiff Borop Multipurpose Co-operative Society Ltd's suit against Doune Farm Limited and others. The defendants argued the suit was frivolous, vexatious, an abuse of process, sub judice in view of pending Nakuru ELC No. 142 of 2019, res judicata following dismissal for want of prosecution of Nairobi HCC No. 1561 of 2002, and statute barred. The plaintiff opposed, asserting triable issues, fraud discovered on 28th October 2020, and that the earlier dismissal was not on the merits. The court framed three issues: sub judice, res judicata, and limitation. It held the suit sub judice under Section 6 of the Civil Procedure Act as it duplicated the pending ELC 142 of 2019 over land parcel LR No. 9045/9; res judicata because the dismissal of HCC 1561 of 2002 for want of prosecution, with reinstatement refused, was a final determination; and statute barred because the plaintiff had pleaded the alleged fraud with particulars by 2003, so neither the three-year fraud period nor the twelve-year land recovery period under the Limitation of Actions Act was satisfied. The court struck out the entire suit and awarded costs of the application and the suit to the 1st to 5th defendants.

Key legal issues

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01

Whether the suit was sub judice under Section 6 of the Civil Procedure Act

Holding

The suit was sub judice because it was pending determination of the same subject matter between the same parties in Nakuru ELC No. 142 of 2019

Reasoning

Section 6 bars trial of a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties. Nakuru ELC 142 of 2019 (formerly Nakuru HCC 86 of 2002) involved the same parties and the same parcel, LR No. 9045/9, with substantially similar orders sought, including through the plaintiff's defence and counterclaim. Determination of that suit would necessarily dispose of the issues here.

p. 4
02

Whether the suit was res judicata by virtue of Nairobi HCC No. 1561 of 2002

Holding

The suit was res judicata because the dismissal of HCC 1561 of 2002 for want of prosecution, and the dismissal of reinstatement, amounted to a final determination

Reasoning

The parties, subject matter and reliefs in HCC 1561 of 2002 were substantially the same. That suit was dismissed for want of prosecution on 17th May 2012 and reinstatement was refused on 13th December 2012. Following Njue Ngai v Ephantus Njiru Ngai, a dismissal for want of prosecution is as good as a final judgment unless set aside, so a fresh suit on the same facts and issues was barred.

p. 5
03

Whether the suit was barred under Section 7 of the Limitation of Actions Act

Holding

The suit was statute barred; the alleged discovery of fraud in October 2020 could not revive a cause of action the plaintiff had pleaded with particulars since 2003

Reasoning

The plaintiff pleaded the alleged fraud and particulars in its Further Amended Plaint dated 5th May 2003 in HCC 1561 of 2002, showing awareness of the transfer to the 1st defendant by then. A fraud-based action had to be filed within three years of discovery, and a claim to recover land within twelve years; on either footing the action, filed on 24th November 2020, was out of time and the court lacked jurisdiction.

p. 6

Legal principles established

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  • A plea of limitation at the interlocutory stage goes to the jurisdiction of the court; if the suit is time barred the court must decline to entertain it
  • A dismissal for want of prosecution, with reinstatement refused, constitutes a final determination such that a subsequent suit on the same facts and issues is res judicata
  • A plea that fraud was discovered later is untenable where the plaintiff had pleaded the fraud and its particulars in earlier pleadings

Court orders

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  1. 1.The plaintiff's entire suit is struck out
  2. 2.The costs of the application and the suit are awarded to the 1st to 5th defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 rule 15
  • Civil Procedure RulesOrder 4 rule 6
  • Limitation of Actions Act (Cap 22 Laws of Kenya)Section 7
  • Limitation of Actions ActSection 26
  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 7
  • Companies ActNot specified
  • Constitution of KenyaArticle 159

Cases cited (8)

  • Kivanga Estates Limited -v- National Bank of Kenya Limited
    [2017] eKLR
  • Thika Min Hydro co. ltd vs. Josphat Karu Ndwiga
    [2013] eKLR
  • D.T Dobie & Company (Kenya) Ltd vs. Muchina
    (1982) KLR
  • Mugah v Kunga
    (1988) KLR
  • Isaack Mugo Kamau & 10 others -vs- Stephen Gitau Ikere & 2 others
    (2021) eKLR
  • Kenya Commercial Bank Ltd -vs- Muiri Coffee Estates Ltd & Another
    (2016)
  • Njue Ngai -v- Ephantus Njiru Ngai & another
    [2016] eKLR
  • Peter Ngome –vs- Plantex company Ltd
    (1983) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; application under Order 2 rule 15 and Order 4 rule 6 of the Civil Procedure Rules and Section 7 of the Limitation of Actions 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, "Borop Multipurpose Co-operative Society Limited v Doune Farm Limited & 6 others [2021] KEELC 2399 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2399/eng@2021-07-28

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