Omar (suing as the administrator of the Estate of the late Ali Omar) v Abdalla & another (Environment & Land Case 121 of 2014) [2022] KEELC 116 (KLR)

Order 24 Rule 4 requires the court, on application, to cause the legal representative of a deceased defendant to be made a party and proceed with the suit. An application dated October 24, 2019 seeking substitution of the deceased 1st Defendant with Feisal Said, his personal representative, was filed and allowed on February 4, 2020. The substitution having taken place, the claim of abatement is unfounded.

Although the application lacked the words required at the foot under Order 51 rule 13(2), Article 159 of the Constitution requires justice to be administered without undue regard to procedural technicalities, and Order 51 Rule 10(2) provides that no application shall be defeated on a technicality. On the commissioning of the supplementary affidavit, the court found that rubber stamps are portable and declined to find it was commissioned in Nairobi.

The issue of the suit property, Nakuru/Municipality Block 5/126, was directly and substantially in issue in the Kadhi's petition, in which the decree pronounced that Mohammed Ali Omar sold his share to the 1st Defendant. The parties are the same or claim under the same title; the plaintiff was the 2nd Defendant in the former suit. The Kadhi's decree dated February 8, 2010 is final, was rendered on merits after full hearing, and the Kadhi's court had jurisdiction over inheritance in which all parties professed the Muslim religion and submitted to its jurisdiction.

Relying on Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd and the Nigerian case of Sarak v Kotoye, the court found that instituting a multiplicity of actions on the same subject matter between the same parties amounts to abuse of judicial process. The circumstances of this suit were on all fours with those illustrations, the suit constituting a fresh action on issues already determined by the Kadhi's court.

Having found the suit res judicata and an abuse of the court process, the court held there was no doubt it should be struck out. Costs follow the event under section 27 of the Civil Procedure Act, and the successful 1st Defendant was awarded costs.