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ELCPartially AllowedNot stated in the judgment text· [2021] KEELC 3191 (KLR)

Elephant Oils Mills Limited v Stephen Njenga Njoroge & 5 others [2021] KEELC 3191 (KLR)

Environment and Land Court
20 May 2021
CYC.K. Yano
3,299 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a land defence re-raising claims already decided in three earlier suits, calling it an abuse of process.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (C.K. Yano, J) on the plaintiff's Notice of Motion dated 2nd October 2020, brought under Sections 1A, 1B, 3A and 7 of the Civil Procedure Act and Orders 2 Rule 15(1), 26 Rule 5 and 51 Rule 1 of the Civil Procedure Rules. The plaintiff, registered proprietor of Galu/Kinondo/351, sought to strike out the undated and unsigned amended defence and counterclaim of the 3rd and 4th defendants filed on 4th February 2020, or in the alternative, security for costs of Kshs 2,244,759.25 with a stay of proceedings pending furnishing of security. The plaintiff relied on a litigation history showing that the defendants' claim to the suit property had already been determined against them: the vesting order in HCCC 109 of 2005 (OS) was set aside by consent and that suit struck out in 2009; their eviction suit ELC 43 of 2014 was struck out in October 2014; and in HCCC 136 of 2014 their defence and counterclaim was struck out with judgment entered against them. The defendants opposed, alleging a fraudulent scheme to deprive them of ancestral land and arguing that all parties had lost title since the subdivisions were registered in the 1st defendant's name. The court framed a single issue: whether the amended defence and counterclaim should be struck out. Applying the settled principles from D.T. Dobie & Co Ltd v Muchina and Blue Shield Insurance v Oguttu, and associating itself with Gikonyo J in Kenya Commercial Bank v Suntra Investment Bank Ltd, the court held the defence raised no triable issues, was res judicata and a continuation of proceedings amounting to an abuse of court process. The motion was allowed; the amended defence and counterclaim were struck out with costs to the plaintiff.

Key legal issues

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Whether the 3rd and 4th defendants' amended defence and counterclaim should be struck out as frivolous, vexatious and an abuse of court process

Holding

Yes. The defence raised no triable issues as the same dispute had been determined against the defendants in three prior suits (HCCC 109 of 2005 (OS), ELC 43 of 2014 and HCCC 136 of 2014); the pleading was res judicata and an abuse of process and was struck out with costs

Reasoning

The court traced the litigation history: the defendants' claim to the suit property was struck out in HCCC 109 of 2005 (OS), their eviction suit was struck out in ELC 43 of 2014, and their defence and counterclaim in HCCC 136 of 2014 was struck out with judgment entered against them. Having failed to raise any triable issue and offering no satisfactory explanation, re-litigating the same defence amounted to an abuse of process. The court exercised its inherent powers and Order 2 Rule 15 jurisdiction, applying the settled principle that striking out is used sparingly but is warranted where the pleading is clearly untenable.

p. 4

Legal principles established

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  • Where a party's suits over the same subject matter have been struck out in previous proceedings, re-litigating the same defence in a subsequent suit is an abuse of court process and such pleadings should be struck out
  • The power to strike out pleadings is discretionary and must be exercised sparingly, only where the pleading is clearly untenable, without embarking on the merits

Court orders

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  1. 1.The amended defence and counterclaim of the 3rd and 4th defendants dated 24th January 2020 and filed on 4th February 2020 is struck out with costs to the plaintiff
  2. 2.Costs of the application are awarded to the Plaintiff

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A and 7
  • Civil Procedure RulesOrder 2 Rule 15(1)
  • Civil Procedure RulesOrder 26 Rule 5
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (4)

  • Blue Shield Insurance Company Ltd vs. Joseph Mboya Oguttu
    [2009] eKLR
  • D.T. Dobie and Company (Kenya) Ltd vs Muchina
    (1982) KLR 1
  • Cail Zeiss Stiftung vs Ranjuer & Keeler Ltd and others (No.3)
    (1970) ChpD 506
  • Kenya Commercial Bank v Suntra Investment Bank Ltd
    [2015] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A and 7 of the Civil Procedure Act; Order 2 Rule 15(1), Order 26 Rule 5 and Order 51 Rule 1 of the Civil Procedure Rules

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, "Elephant Oils Mills Limited v Stephen Njenga Njoroge & 5 others [2021] KEELC 3191 (KLR)", Case Analysis (2021). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3191/eng@2021-05-20

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