Omar Salim Chengo & others v Philemon Mwaisaka & 13 others [2021] KEELC 2836 (KLR)
The bottom line
#The Environment and Land Court in Mombasa refused to strike out a land fraud suit by self-represented owners, allowing their case to proceed to a full hearing.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The suit is not res judicata Mombasa HCCC Misc. No. 560 of 2004 because the judgment in that suit was set aside and the suit was thereafter struck out before it could be heard and determined
Mureithi J's judgment of 3 March 2012 was set aside in its entirety by Omollo J on 5 July 2018; the revived suit was then struck out as a nullity for being filed against deceased persons. No judgment on the issues therefore exists, and Section 7 of the Civil Procedure Act requires a former suit to have been heard and finally decided.
Res sub judice
The suit is not sub judice Mombasa ELC Petition No. 48 of 2019 as the parties are not the same and the plaintiffs neither appear to be party to the petition nor to claim under the same title
Although the issues overlap (alleged illegal amalgamation and subdivision of Plots 324 and 334), Section 6 requires same parties or those litigating under the same title. The plaintiffs' participation in or benefit from the petition was not demonstrated.
Limitation
The time-bar plea is premature and should be canvassed at the hearing with evidence
It was not obvious from the pleadings that the claim was time barred; the court declined to dismiss the suit on that basis without receiving evidence.
Non-existence of the suit titles
The suit will not be struck out merely because Plots 324 and 334 were consolidated and subdivided; the plaintiffs' fraud claim regarding the subdivisions is discernible and the defendants are sued as registered owners of the subdivided portions
The plaintiffs plead fraud in the amalgamation, subdivision and allocation. The plaint could have been better drafted, but the plaintiffs are unsophisticated litigants in person deserving protection under Article 159(2)(d); striking out would be disproportionate.
Legal principles established
#- Res judicata applies only where the matter in a former suit was heard and finally decided; a suit struck out before hearing cannot found res judicata
- Res sub judice under Section 6 of the Civil Procedure Act requires the same parties or parties claiming under the same title
Court orders
#- 1.The application dated 19 November 2020 is dismissed
- 2.The application dated 3 December 2020 is dismissed
- 3.Costs of both applications to the plaintiffs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; Article 159(2)(d) of the Constitution invoked to protect in-person litigants
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omar Salim Chengo & others v Philemon Mwaisaka & 13 others [2021] KEELC 2836 (KLR)", Case Analysis (2021). ELC Case of 2020 (Mombasa) — striking-out applications dated 19 November 2020 and 3 December 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2836/eng@2021-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.