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ELCStruck OutEnvironment & Land Case 4 of 2022· [2023] KEELC 17228 (KLR)

Mkare Tsuma Dima & 2 Others v Kay Resorts Limited

Environment and Land Court of Kenya
8 May 2023
2,545 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi (MAO Odeny, J) determined a Notice of Motion dated July 5, 2022 by the defendant, Kay Resorts Limited, seeking striking out of the plaintiffs' Originating Summons claiming adverse possession of LR Nos 10165-10168 (consolidated as LR No. 20251) as frivolous, vexatious and an abuse of court process. The defendant showed that the same plaintiffs had previously filed Malindi ELC No. 191 of 2014 (OS) against Teber Limited seeking adverse possession of the same land. Pursuant to a court order of November 3, 2014, the Chief Land Registrar supplied records on September 15, 2016 showing Kay Resorts Limited became registered owner on July 10, 2014, yet the plaintiffs never substituted Teber Limited, and the prior suit was dismissed for want of prosecution on October 26, 2020 with no application for reinstatement. The plaintiffs filed only general grounds of opposition. The court held that the fresh suit, with the same plaintiffs, same parcels and same subject matter, merely swapping parties, was a multiplicity of actions amounting to abuse of court process, aggravated by non-disclosure of the prior proceedings. Applying Satya Bhama Gandhi and Muchanga Investments, the court struck out the Originating Summons with costs to the defendant. The court also observed obiter that courts should deploy technology to detect duplicative suits.

Key legal issues

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01

Whether the current suit, filed after dismissal for want of prosecution of a prior suit over the same land with substantially the same parties, is an abuse of court process

Holding

Yes - the suit is an abuse of court process and is struck out with costs to the defendant

Reasoning

The plaintiffs were the same in the prior Malindi ELC No. 191 of 2014 suit against Teber Limited over the same parcels. They knew from the Chief Land Registrar's records of September 15, 2016 that Kay Resorts Limited was the registered owner, yet failed to substitute it and allowed the prior suit to be dismissed for want of prosecution on October 26, 2020. They never sought reinstatement, but instead filed a fresh suit omitting Teber Limited and adding Kay Resorts. The court held this was a multiplicity of actions on the same subject matter, amounting to abuse of process, aggravated by non-disclosure of the prior suit.

p. 4
02

Whether non-disclosure of previous proceedings by a plaintiff warrants striking out

Holding

Yes - failure to disclose the prior suit and its dismissal amounted to non-disclosure of material facts

Reasoning

The court found the plaintiffs gave a wide berth to the existence of the previous suit involving the same parties and subject matter, and its dismissal for want of prosecution. A litigant must come to court with integrity and clean hands and disclose previous suits involving the same subject matter or parties; failure attracts consequences. The plaintiffs filed only general grounds of opposition without a replying affidavit to explain the facts.

Legal principles established

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  • The mere addition or omission of parties in a subsequent suit does not necessarily render the doctrine of res judicata inapplicable; cosmetic changes to pleadings cannot defeat the doctrine.
  • Abuse of court process has the same meaning as abuse of judicial process and applies to proceedings wanting in bona fides and that are frivolous, vexatious or oppressive.
  • A party filing a suit must disclose any previous suit involving the same subject matter or parties; non-disclosure attracts consequences.

Court orders

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  1. 1.The Plaintiffs' Originating Summons is struck out as an abuse of court process
  2. 2.Costs of the suit awarded to the defendant

Authorities

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Legislation

  • Limitation of Actions ActCap 22 (adverse possession)
  • Civil Procedure Rules, 2010Order 37 rule 7

Cases cited (5)

  • Satya Bhama Gandhi vs Director of Public Prosecutions & 3 Others
    [2018] eKLR

    Addition or omission of parties does not defeat res judicata; cosmetic surgery to pleadings cannot escape the doctrine

  • Stephen Okero Oyugi Versus Law Society Of Kenya & Another
    [2020] eKLR

    Bringing a fresh application seeking orders similar to those earlier sought constitutes abuse of court process

  • Nancy Musili vs Joyce Mbete Katisi – Machakos
    [2018] eKLR

    Abuse of court process applies to proceedings wanting in bona fides, frivolous, vexatious or oppressive

  • Muchanga Investments Limited V Safaris Unlimited (Africa) Ltd & 2 Others
    [2009] eKLR

    Definition and illustrations of abuse of judicial process, including multiplicity of actions on the same subject matter

  • Stephen Somek Takwenyi & Another Vs. David Mbuthia Githare & 2 Others
    Nairobi (Milimani) HCCC No 363 of 2009

    Abuse of court process has the same meaning as abuse of judicial process

Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over adverse possession claims concerning LR Nos 10165-10168 and LR No. 20251

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, "Mkare Tsuma Dima & 2 Others v Kay Resorts Limited", Case Analysis (2023). Environment & Land Case 4 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17228/eng@2023-05-08

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