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ELCStruck OutEnvironment & Land Case E428 of 2021· [2023] KEELC 17894 (KLR)

Zara Properties Limited (CPR/2010/24490) v Zamina Properties Limited & 3 others

Environment and Land Court
25 May 2023
1,178 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 struck out a duplicate land case, warning that filing a fresh suit over an already-pending dispute wastes the court's time.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (E. K. Wabwoto, J) determined the 1st Defendant's preliminary objection dated October 13, 2022, filed in response to the plaintiff's plaint dated December 14, 2021 and the 3rd Defendant's counterclaim. The objection contended that the suit was fatally defective as it violated res judicata and estoppel under Sections 5 and 7 of the Civil Procedure Act, given two prior rulings by Justice E. O. Obaga in ELC 69 of 2015 (consolidated with ELC 92 of 2015 and ELC 183 of 2011), and that the 3rd Defendant's counterclaim violated Order 7 Rules 8 and 11 of the Civil Procedure Rules. The 3rd Defendant opposed, relying on DT Dobie and Article 159(2)(d) of the Constitution, urging that striking out is drastic and errors in title are curable. The 1st Defendant argued the fresh suit circumvented subsisting orders and that the plaintiff's remedy was review or appeal. The court framed a single issue: whether the preliminary objection was merited. Applying Nitin Properties on the nature of preliminary objections and setting out the five elements of res judicata, the court noted the existence of pending consolidated suits over LR 209/12261 with overlapping parties, and held that filing a new suit on the same subject matter was an abuse of process. The court struck out the suit, making no orders as to costs.

Key legal issues

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01

Whether the plaintiff's suit is res judicata and an abuse of court process given the consolidated suits in ELC 69 of 2015

Holding

The preliminary objection was merited; the suit was struck out as an abuse of the court process

Reasoning

The court noted the existence of pending consolidated suits (ELC 69 of 2015, ELC 92 of 2015 and ELC 183 of 2011) concerning ownership of LR 209/12261, with overlapping parties including Samwel Njeru Muthi, Zara Properties Ltd and Ye Land Properties Ltd. Filing a fresh suit on the same subject matter was held to be an abuse of process warranting striking out, notwithstanding the general preference for determination on the merits.

p. 2
02

Whether striking out is appropriate despite the preference for suits to be determined on their merits

Holding

A court should not shy away from striking out proceedings that are clearly an abuse of the court process

Reasoning

Relying on Muchanga Investments v Safaris Unlimited, the court held that while suits should ordinarily be determined on their merits, proceedings instituted in abuse of the process - frivolous, vexatious or oppressive - should be struck out to protect the efficient administration of justice.

p. 3

Legal principles established

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  • A preliminary objection must be a pure point of law, argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised where facts must be ascertained or judicial discretion exercised
  • Filing a new and separate case despite a similar pending case on the same subject matter amounts to an abuse of the court process

Court orders

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  1. 1.The suit is struck out
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 5 & 7
  • Civil Procedure ActSections 1A, 2A and 3A
  • Civil Procedure Rules, 2010Order 7 Rule 8 & 11
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (6)

  • DT Dobie & Co Ltd v Joseph Mbaria Muchina
    [1982] 1 KLR 1

    Striking out pleadings is a drastic measure; courts should focus on substantive issues

  • Martha Karua v Independent Electoral & Boundaries Commission & 3 others
    [2018] eKLR

    Striking out of pleadings is a drastic measure

  • Origo & Another v Mungala
    [2015] eKLR

    Wrong to resuscitate a decided matter by filing a fresh suit

  • Mokua Ongiri v John Nyasende Mosioma & Another
    [2015] eKLR

    Cited alongside Origo v Mungala on resuscitating decided matters

  • Nitin Properties Ltd v Singh Kalsi & another
    [1995] eKLR

    Definition of a preliminary objection as a pure point of law

  • Muchanga Investments Limited vs Safaris Unlimited (Africa) Ltd & 2 others
    Civil Appeal No 25 of 2002 (2009) eKLR 229

    Meaning of abuse of court process

Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - not expressly stated in the ruling

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, "Zara Properties Limited (CPR/2010/24490) v Zamina Properties Limited & 3 others", Case Analysis (2023). Environment & Land Case E428 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17894/eng@2023-05-25

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