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ELCPartially AllowedELC No. 20 of 2020 (Machakos)· [2021] KEELC 2825 (KLR)

Morris Muumba Ndeti & 6 others (Suing on their behalf and as officials of Kaseve Welfare Society) v Harp Housing Limited [2021] KEELC 2825 (KLR)

Environment and Land Court
18 June 2021
OAO. A. Angote
6,738 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiffs filed an Originating Summons dated 8th April, 2021 claiming title to L.R. No. 337/1002 (and its sub-divisions L.R. Nos. 337/5371 and 337/5372) by adverse possession, and obtained ex parte injunctive orders on 28th April, 2021. The Defendant, Harp Housing Ltd, filed a Notice of Motion dated 30th April, 2021 seeking to set aside those orders and to strike out the entire suit as sub judice and an abuse of court process. The Defendant contended it was never served, that the Plaintiffs concealed the existence of Machakos ELC No. 64 of 2020 and Milimani CMCC No. 2196 of 2020, and that in ELC No. 64 of 2020 the court had already dismissed the Plaintiffs' injunction application and ordered them to deposit Kshs. 1,000,000 as security for costs. The court framed four issues: service, material non-disclosure, abuse of process, and the orders to issue. It found the Affidavit of Service defective under Order 5 Rule 15(1) of the Civil Procedure Rules and held the Defendant was never served. Applying the Kensington Income Tax Commissioners principle and Brink's MAT Ltd v Elcombe, it held the Plaintiffs' failure to disclose ELC No. 64 of 2020 was material non-disclosure that misled the court into granting conflicting ex parte orders. The court further found the suit a classic abuse of process: the Plaintiffs were litigating in instalments, could have pleaded adverse possession in the earlier suit, and their Notice of Withdrawal of ELC No. 64 of 2020 had not been adopted by the court. The court set aside the orders of 28th April, 2021, struck out the Plaintiffs' suit with costs, and awarded the Defendant the costs of the Application.

Key legal issues

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01

Validity of service of the Originating Summons and Notice of Motion

Holding

Service was invalid because the Affidavit of Service did not comply with Order 5 Rule 15(1); the Defendant was never served.

Reasoning

The process-server stated only that 'after investigations' he was informed of the Defendant's location, without disclosing the source of his information or how he identified the person served. The court held the affidavit did not meet the basic requirements of Order 5 Rule 15(1), and cross-examination of the process-server was unnecessary to arrive at that finding.

p. 4
02

Material non-disclosure by the Plaintiffs

Holding

The Plaintiffs failed to disclose the existence of Machakos ELC No. 64 of 2020 and the Ruling therein, misleading the court into granting ex parte injunctions conflicting with earlier orders.

Reasoning

Applying the Kensington Income Tax Commissioners principle and Brink's MAT guidance, the court found the non-disclosure was material because the earlier suit involved the same parties and property and had produced a ruling dismissing the Plaintiffs' injunction application. Had those facts been disclosed, the ex parte orders would not have issued. The orders of 28th April, 2021 were therefore set aside.

p. 7
03

Whether the suit was an abuse of court process

Holding

Yes; the Plaintiffs litigated in instalments, filing the present suit before withdrawing ELC No. 64 of 2020, which remains subsisting.

Reasoning

The Plaintiffs had already litigated the same dispute over LR No. 337/1002 in CMCC No. 2196 of 2020 (struck out for want of jurisdiction) and ELC No. 64 of 2020 (injunction dismissed, security for costs ordered). Adverse possession could have been pleaded by amendment in the earlier suit. The Notice of Withdrawal was filed only after this suit was filed and has not been adopted by the court, so ELC No. 64 of 2020 still subsists. The suit was struck out under Order 2 Rule 15(1)(d).

p. 8

Legal principles established

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  • A person making an ex parte application owes the court a duty of fullest possible disclosure of all material facts, failing which any advantage obtained will be deprived.
  • Where an Affidavit of Service does not comply with Order 5 Rule 15(1) of the Civil Procedure Rules, the process server need not be cross-examined for the court to find service invalid.
  • Filing a fresh suit over the same subject matter between the same parties while a previous suit is pending, without disclosure, is an abuse of court process warranting striking out under Order 2 Rule 15(1)(d).
  • A claim of adverse possession need not be brought by Originating Summons; it may be brought by plaint, counter-claim or defence.

Court orders

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  1. 1.The orders of the court granted on 28th April, 2021 and the subsequent orders of status quo are discharged and set aside
  2. 2.The Plaintiffs' suit is struck out with costs for being an abuse of the court process
  3. 3.The Plaintiffs to pay the costs of the Defendant's Application dated 30th April, 2021

Authorities

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Legislation

  • Civil Procedure RulesOrder 5 Rule 15(1)
  • Civil Procedure RulesOrder 2 Rule 15(1)(d)
  • Societies Act

Cases cited (9)

  • Republic vs. Kensington Income Tax Commissioners, ex parte Princess Edmond de Polignac
    [1917] 1 KB 486
  • The owners of the Motor Vessel "Lilian S" vs. Caltex Oil (Kenya) Limited
    (1989) eKLR
  • Brink's MAT Ltd vs. Elcombe
    [1988] 3 ALL ER CA 188
  • Kivanga Estates Limited v National Bank of Kenya Limited
    [2017] eKLR
  • Chevron (K) Ltd v Harrison Charo Wa Shutu
    [2016] eKLR
  • Mariba v Mariba
    Civil Appeal No. 188 of 2002
  • Wabala v Okumu
    (1997) LLR 609 (CAK)
  • Gulam Mariam Noordin v Julius Charo Karisa
    Civil Appeal No 26 of 2015
  • Bayete Co. Ltd v Kosgey
    [1998] LLR 813
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes in Machakos County

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Morris Muumba Ndeti & 6 others (Suing on their behalf and as officials of Kaseve Welfare Society) v Harp Housing Limited [2021] KEELC 2825 (KLR)", Case Analysis (2021). ELC No. 20 of 2020 (Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2825/eng@2021-06-18

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