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ELCPartially AllowedELC Case (Nairobi), Plaint dated 9/10/2023 with Notice of Motion dated 9/10/2023 and Notice of Motion dated 3/11/2023· [2024] KEELC 320 (KLR)

Exclusive Living East Africa Ltd v Bulimu (Environment & Land Case ELCLOM/002 of 2023) [2024] KEELC 320 (KLR)

Environment and Land Court
24 January 2024
3,856 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed both sides' applications in a family property fight, froze the property's status, and paused the case until a related High Court dispute is resolved.

What this practically means

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Executive summary

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The plaintiff company, through co-director Marc Oliver Strack, sued claiming to be the registered owner of LR No 209/2389/16 (Rivulet Residences, Pangani) and sought a temporary injunction, declaration of trespass, eviction of the defendant and occupants, deposit of rents into court, damages and security assistance. The defendant, who claims to be Strack's wife and a former director ousted in a 2020 'boardroom coup', opposed, arguing the dispute is essentially about company directorship and shareholding already pending in HCCOM/E453/2020, that prior rent orders existed, and that the suit offended section 6 of the Civil Procedure Act and was an abuse of process; she sought a stay and striking out. The court identified four issues: entitlement to a temporary injunction, jurisdiction over directorship and shares, res judicata/conflict with prior orders, and costs. It found the plaintiff guilty of non-disclosure of multiple suits and of prior rent orders amounting to abuse of process, declined to determine the directorship question, holding it belongs to the High Court, and found the subject matters in the various suits substantially distinct so that neither application succeeded in its terms. Both notices of motion were dismissed, but the court ordered status quo on the suit property maintained and stayed the present suit until HCCOM/E453/2020 is determined, directing each party to bear its own costs and suggesting consolidation or amicable resolution or court-annexed mediation.

Key legal issues

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01

Temporary injunction under Order 40 rules 1 & 2

Holding

Injunction not granted in the terms sought; instead status quo preserving the suit property ordered because the ownership of the company is unresolved and the property is the alleged matrimonial home

Reasoning

The court applied the Giella v Cassman Brown principles and Mrao's prima facie test. It found the defendant's claim that the property is the matrimonial home uncontested, and the plaintiff guilty of non-disclosure of prior suits and rent orders. The balance of convenience favoured preservation of the property pending trial rather than eviction or an injunction in the plaintiff's terms.

p. 5
02

Jurisdiction over directorship and shareholding

Holding

The ELC is not the proper forum for the company directorship dispute; that belongs to the High Court, while land matters properly lie with the ELC

Reasoning

The court held that ownership of the suit property itself is not contested; the real contest is over shareholding and directorship of the plaintiff company and the rent. It declined to deal with the directorship issue, holding that the High Court (HCCOM/E453/2020) should determine it first, invoking the Kibos Distillers 'appropriate remedies' approach for mixed grill disputes.

p. 7
03

Res judicata and stay under section 6 of the Civil Procedure Act

Holding

Section 6 conditions were not fully met because the matters, though overlapping, are substantially distinct and pending; the defendant's striking-out application failed, but the suit was nonetheless stayed pending HCCOM/E453/2020

Reasoning

The court set out the ingredients of res judicata and stay under section 6, noting the matters pending are not concluded and the subject matters are substantially distinct between the High Court and ELC. However, given the multiplicity of suits and prior inconsistent rent orders, it stayed the present suit until the High Court company suit is determined.

p. 7
04

Abuse of court process through multiplicity of suits and non-disclosure

Holding

Both parties filed multiple suits; the plaintiff's non-disclosure of prior suits and rent orders amounted to abuse of court process

Reasoning

The court observed that the plaintiff instituted multiple suits over the same subject matter without disclosing them in the pleadings, and that earlier orders by Okwany J and Chepkwony J on rent appeared contradictory. It condemned this strategy as an abuse of process and discouraged it, though it did not strike out the suit.

p. 4
05

Costs

Holding

Despite section 27(1) providing that costs follow the event, each party was ordered to bear their own costs given the family relationship

Reasoning

The court noted the statutory rule that costs follow the events but exercised discretion because the dispute is between an alleged husband and wife who are family, directing each party to bear their own costs of the applications.

p. 7

Legal principles established

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  • An applicant for injunction must make a frank and full disclosure of all relevant facts and show a right, legal or equitable, requiring protection
  • The rationale behind res judicata is the public interest that there should be an end to litigation and protection from repetitive litigation
  • Conditions for a stay of proceedings under section 6 of the Civil Procedure Act
  • In mixed grill disputes courts should fashion appropriate remedies rather than shutting litigants out of the seat of justice
  • Where ownership of the suit property is not contested and balance of convenience favours preservation, status quo preserving the property should be maintained

Court orders

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  1. 1.The Notice of Motion dated 9/10/2023 by the Plaintiff/Applicant is dismissed
  2. 2.The Notice of Motion application dated 3/11/2023 by the Defendant is found to be unmeritorious and hence dismissed
  3. 3.This suit is stayed until High Court HCCOM No E453 of 2020 is heard and determined
  4. 4.Status quo presently prevailing on the suit property be maintained
  5. 5.Each party to bear their own costs of the application filed hereof
  6. 6.Any party is at liberty to apply

Authorities

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Legislation

  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 3A
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 6
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 27(1)
  • Civil Procedure Rules of 2010Order 40 rules 1, 2, 3, 4 & 8; Order 51 rule 1
  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court Act No 19 of 2012Section 3

Cases cited (6)

  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358
  • Mrao Ltd v First American Bank of Kenya Limited and 2 others
    [2003] KLR 125
  • Kenleb Cons Ltd v New Gatitu Services Station Ltd & another
    1990 KLR 557
  • John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 others
    (2015) eKLR
  • Co-operative Bank v Patrick Njuguna Kangethe
    CA No 83 of 2016 (Mombasa) (2017) eKLR
  • Benson Ambuti Adega & 2 others v Kibos Distillers Limited & 5 others
    [2020] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya and section 3 of the Environment and Land Court Act No 19 of 2012; Section 3A of the Civil Procedure 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, "Exclusive Living East Africa Ltd v Bulimu (Environment & Land Case ELCLOM/002 of 2023) [2024] KEELC 320 (KLR)", Case Analysis (2024). ELC Case (Nairobi), Plaint dated 9/10/2023 with Notice of Motion dated 9/10/2023 and Notice of Motion dated 3/11/2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/320/eng@2024-01-24

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