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ELCDismissedEnvironment and Land Appeal 31 of 2021· [2023] KEELC 15688 (KLR)

Mombasa Trade Centre Ltd v Micro City Computers Limited & 2 others

Environment and Land Court
21 February 2023
3,291 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that filing a fresh lawsuit over a dispute already before other courts is an abuse of process that will get your case struck out.

What this practically means

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Executive summary

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The Appellant, landlord of Units G07 and G01B at Mombasa under two six-year leases, sued the 1st Respondent tenant and its two directors as guarantors in RMCC E33 of 2020 for rent arrears of Kshs 8,905,104.97 and eviction. The Respondents applied to strike out the plaint as vexatious and an abuse of process, citing three pending suits the 1st Respondent had filed (HCCC 21 of 2019, CM ELC 27 of 2020 and CM ELC 33 of 2020) concerning distress for rent under the same tenancies. On 12th May 2021 Senior Principal Magistrate C. Ndegwa struck out the suit, holding the Appellant should have filed a counterclaim in the existing suits. The Appellant appealed on ten grounds, arguing the causes of action were distinct, the parties differed in capacity, and the magistrate misapplied res judicata and sub judice under Section 6 of the Civil Procedure Act. Matheka J reviewed the leases and guarantee, noting the guarantee formed the seventh schedule of the 2015 lease, so the guarantors could not be sued without reference to the leases. Applying Nguruman and Mbogo v Shah on interference with discretionary decisions, and Kivanga Estate on the integrity of the justice system, the court agreed the fresh suit, filed with knowledge of the pending suits, was itself an abuse of process. The court found both parties at fault for not seeking amendments instead of filing multiplicitous suits, but held the magistrate properly exercised discretion under Order 2 Rule 15(1)(b) and (d). The appeal was dismissed with costs.

Key legal issues

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01

Whether RMCC E33 of 2020 was sub judice / an abuse of process given three pending suits over the same tenancies

Holding

Yes - the suit was directly and substantially similar to the pending suits; the magistrate had sufficient reason under Order 2 Rule 15(1)(b) and (d) to strike it out

Reasoning

The court found all pending suits related to the same two commercial leases between the Appellant and 1st Respondent. The guarantors were sued in a capacity tied to the same leases, the guarantee forming the seventh schedule of the lease. Filing a fresh suit while aware of the pending suits was itself an abuse of process.

p. 5
02

Whether the appellate court could interfere with the trial magistrate's discretion

Holding

No - the magistrate's discretion was properly exercised; the appeal was unmerited

Reasoning

Applying Nguruman and Mbogo v Shah, the court held interference is warranted only where the lower court erred in principle, considered wrong factors, or reached a plainly wrong decision. Finding none, the court deferred to the magistrate's discretion and dismissed the appeal.

03

Whether both parties bore fault in the multiplicity of suits

Holding

Both parties were at fault - the Appellant should have sought amendment and joinder in a pending suit, and the 1st Respondent likewise should have sought leave to amend rather than filing similar suits in different courts

Reasoning

The court examined the conduct of both sides: the Appellant filed a fresh suit instead of amending pending pleadings to join the guarantors, while the 1st Respondent instigated similar suits before different courts on the same distress issue.

Legal principles established

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  • An appellate court will not interfere with the exercise of discretion by an inferior court unless satisfied the decision is clearly wrong - misdirection, reliance on wrong matters, or failure to consider relevant matters leading to a wrong conclusion
  • Commencing a fresh suit while aware of pending suits over the same subject matter between the same parties constitutes an abuse of court process justifying striking out under Order 2 Rule 15(1)(b) and (d)
  • Guarantors of rent under a lease cannot be sued without reference to the lease itself, as the guarantee forms part of the lease agreement

Court orders

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  1. 1.The appeal is dismissed with costs
  2. 2.The ruling of the learned magistrate dated 12th May 2021 striking out RMCC E33 of 2020 is upheld

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSections 1A, 3A
  • Civil Procedure RulesOrder 2 Rule 15(1)(b),(c),(d)
  • Constitution of Kenya 2010overriding principle

Cases cited (5)

  • Paragon Electronics Limited v Fatma Muses
    [2022] eKLR

    A party must live within the terms of its bargain unless established exceptions are proven

  • National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another
    [2001] eKLR

    Established exceptions to enforcement of contractual terms

  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR

    Conditions for interfering with the exercise of discretion by a lower court

  • Mbogo and another v Shah
    [1968] EA 93

    Appellate court will not interfere with discretion of inferior court unless decision is clearly wrong

  • Kivanga Estate Limited v National Bank of Kenya Limited
    (2017) eKLR

    Court's duty to maintain integrity of the justice system and further the overriding objective

On appeal from
Senior Principal Magistrate's Court at Mombasa
Mombasa Resident Magistrate Civil Case No. E33 of 2020
Jurisdiction invoked
First appeal to the Environment and Land Court against a ruling of the Senior Principal Magistrate (statutory appellate jurisdiction over subordinate courts' land disputes)

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, "Mombasa Trade Centre Ltd v Micro City Computers Limited & 2 others", Case Analysis (2023). Environment and Land Appeal 31 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15688/eng@2023-02-21

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