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ELCStruck OutNot stated in the excerpt (ELC suit commenced by plaint dated 26th July 2022)· [2023] KEELC 667 (KLR)

High Seas Petroleum Contractors Limited v East African Gas Oil Limited & another (Environment & Land Case E082 of 2022) [2023] KEELC 667 (KLR)

Environment and Land Court
15 February 2023
2,139 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a land dispute suit because the same parties were already litigating the same property in other courts, and the plaintiff hid that fact.

What this practically means

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Executive summary

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The plaintiff sued by plaint dated 26th July 2022 seeking a permanent injunction restraining the defendants from selling land parcel Kilifi/Roka/1887, declarations that the advertisement for sale was illegal and that a lease agreement dated 5th July 2016 was lawfully terminated, general damages, costs and interest. Concurrently it obtained exparte stay orders on 27th July 2022. The 1st defendant, East African Gas Oil Ltd, filed a preliminary objection dated 7th August 2022 contending the suit was res judicata (section 7, Civil Procedure Act) given Malindi CMC E036 of 2022 and HCCA No 33 of 2020; sub judice (section 6) given pending Kilifi CMC No 167 of 2019; barred by section 7 of the Magistrate's Court Act as the subject matter is valued at Ksh 13,000,000; and an abuse of process amounting to forum shopping. The plaintiff had no filed reply to the defence, so its denials of prior litigation stood uncontroverted under Order 7 rule 17(1). The court found the plaint averments untrue and a misrepresentation aimed at securing exparte injunctions, applied Alka Roshanlal Harbanslal Sharma and John Florence Maritime Services, and held the suit res judicata, sub judice and an abuse of process. The preliminary objection was upheld; the plaint and notice of motion were struck out; the interim orders were vacated; and the plaintiff was ordered to pay the 1st defendant's costs in the suit, motions and preliminary objection.

Key legal issues

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01

Res judicata (section 7, Civil Procedure Act)

Holding

The suit is res judicata as between the same parties over the same subject matter, previously determined in Malindi CMCC E036 of 2022 and HCCA No 33 of 2020.

Reasoning

The plaintiff's plaint averred there were no pending or previous proceedings, but the defence listed prior and pending suits in Kilifi and Malindi. The plaintiff filed no reply, so those averments stood uncontroverted under Order 7 rule 17(1). Relying on Alka Roshanlal Harbanslal Sharma and John Florence Maritime Services, the court held the suit offends section 7 of the Civil Procedure Act and constitutes abuse of process.

p. 4
02

Sub judice (section 6, Civil Procedure Act)

Holding

Kilifi CMCC No 167 of 2019 between the same parties over the same subject matter is still pending, rendering this suit sub judice.

Reasoning

The defence pleaded that Kilifi CMCC No 167 of 2019 (filed April 18, 2019) remains pending. That averment was not denied or rebutted by any reply. The court therefore found a pending suit over the same subject matter between the same parties, invoking section 6 of the Civil Procedure Act.

p. 3
03

Abuse of process and non-disclosure by plaintiff and counsel

Holding

The suit, filed without disclosing prior related litigation, is a gross abuse of the court process; the plaintiff's counsel failed in the duty as an officer of the court.

Reasoning

The court found the plaintiff's averments at paragraphs 4 and 14 of the plaint untrue and a misrepresentation aimed at obtaining exparte injunctive orders. It observed that counsel who knew of prior suits failed in their duty as an officer of the court, contrary to the obligation under sections 1A and 1B of the Civil Procedure Act to facilitate just, expeditious and proportionate resolution.

p. 3
04

Jurisdiction under section 7 of the Magistrate's Court Act (subject matter value Ksh 13,000,000)

Holding

The judgment excerpt records the ground but the court's explicit determination on pecuniary jurisdiction is not reproduced; the objection was nonetheless upheld on res judicata/sub judice grounds.

Reasoning

Ground (c) of the preliminary objection asserted want of jurisdiction under section 7 of the Magistrate's Court Act because the subject matter is valued at Ksh 13,000,000. The court framed it as an issue for determination, but the excerpted determinations only expressly rule on res judicata, sub judice and abuse of process before striking out the suit and vacating interim orders.

p. 1

Legal principles established

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  • Res judicata rests on the public interest that there should be an end to litigation and protection from repetitive litigation over the same matter.
  • A plaintiff who fails to file a reply to a statement of defence as required under Order 7 rule 17(1) of the Civil Procedure Rules has the defence averments taken as uncontroverted.
  • Filing multiple suits over the same subject matter and parties without disclosing prior litigation amounts to abuse of the court process.

Court orders

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  1. 1.The 1st defendant's preliminary objection dated 7th August 2022 on grounds of sub judice and res judicata, hence abuse of court process, is upheld.
  2. 2.The plaintiff's suit commenced through the plaint dated 26th July 2022, and the notice of motion of the same date, be and are hereby struck out.
  3. 3.The temporary injunction/stay and status quo orders granted exparte on 27th July 2022 are vacated.
  4. 4.The plaintiff to pay the 1st defendant's costs in the suit, notices of motion and preliminary objection.

Authorities

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Legislation

  • Civil Procedure Act (Chapter 21, Laws of Kenya)section 7
  • Civil Procedure Act (Chapter 21, Laws of Kenya)section 6
  • Civil Procedure Act (Chapter 21, Laws of Kenya)sections 1A and 1B
  • Civil Procedure Act (Chapter 21, Laws of Kenya)section 27
  • Civil Procedure RulesOrder 7 rule 17(1)
  • Magistrate's Court Act 2015section 7

Cases cited (2)

  • Alka Roshanlal Harbanslal Sharma & another v Theresa Costabir & 2 others
    [2019] eKLR
  • John Florence Maritime Services Ltd & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    (2015) eKLR
Jurisdiction invoked
Articles 162(2)(b) of the Constitution and the Environment and Land Court Act (court so constituted); objection grounded on sections 6 and 7 of the Civil Procedure Act and section 7 of the Magistrate's Court 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, "High Seas Petroleum Contractors Limited v East African Gas Oil Limited & another (Environment & Land Case E082 of 2022) [2023] KEELC 667 (KLR)", Case Analysis (2023). Not stated in the excerpt (ELC suit commenced by plaint dated 26th July 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/667/eng@2023-02-15

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