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ELCDismissedMachakos ELC (not stated in excerpt; relates to prior Machakos ELC No. 65 of 2012)· [2024] KEELC 373 (KLR)

Kimani & 18 others v Kwa Ndege Limited & 3 others (Environment & Land Case E089 of 2022) [2024] KEELC 373 (KLR)

Environment and Land Court
31 January 2024
2,299 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a case dismissed for want of prosecution doesn't bar a fresh suit, and a bank can't be struck out merely for changing its name.

What this practically means

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Executive summary

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The Environment and Land Court at Machakos (Christine Ochieng, J) determined the 2nd Defendant's Notice of Preliminary Objection dated 10th January 2023, canvassed by written submissions, on two grounds: that the Plaintiffs' suit was res judicata given the earlier Machakos ELC No. 65 of 2012, and that the 2nd Defendant should be struck out as a non-existent party following the merger of Kenya Commercial Bank and National Bank of Kenya. Framing two issues, the court applied Section 7 of the Civil Procedure Act and the Supreme Court's five-part test in John Florence Maritime Services, comparing the prayers in the previous and current suits. Although the fulcrum of the dispute was the same, the court found the previous suit had been dismissed for want of prosecution and its issues were never conclusively determined on merit, save for a Ruling dated 11th March 2015; the suit was therefore not res judicata. On the second ground, the court invoked Section 66(3) of the Companies Act, 2015, which permits proceedings against a company under its former name to be continued under its new name, and held that striking out would require ascertainment of facts absent documentary proof of the name change, contrary to the Mukhisa Biscuit test for preliminary objections. The court dismissed the preliminary objection as unmerited and ordered costs in the cause.

Key legal issues

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01

Whether the suit is res judicata given the previous Machakos ELC No. 65 of 2012

Holding

The suit is not res judicata because the previous suit was dismissed for want of prosecution and its issues were never conclusively determined on merit, even though the fulcrum of the dispute was the same.

Reasoning

The court applied the five-part test in Bernard Mugo Ndegwa v James Nderitu Githae as adopted by the Supreme Court in John Florence Maritime Services, including finality of the previous decision. Comparing the prayers in both suits, it found overlapping subject matter but noted other issues were raised in the current suit. Since the former suit ended in dismissal for want of prosecution with only a ruling on record, the element of finality on the merits was absent, defeating the res judicata plea.

p. 5
02

Whether the 2nd Defendant should be struck out as non-existent following the KCB/NBK merger and change of name

Holding

The suit against the 2nd Defendant cannot be struck out on account of change of name; absent documentary proof, the facts require evidentiary ascertainment.

Reasoning

The court relied on Section 66(3) of the Companies Act, 2015, which permits legal proceedings commenced against a company under its former name to be continued under its new name. It also applied the Mukhisa Biscuit test: since ascertaining whether the 2nd Defendant exists in the form claimed would require evidence, the point was improperly raised as a preliminary objection. The court therefore declined to strike out the 2nd Defendant.

p. 5

Legal principles established

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  • A suit dismissed for want of prosecution, with issues not conclusively determined on merit, cannot found a plea of res judicata
  • Legal proceedings against a company by its former name may be continued or commenced against it by its new name under Section 66(3) of the Companies Act, 2015

Court orders

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  1. 1.The Notice of Preliminary Objection dated 10th January, 2023 is dismissed
  2. 2.Costs will be in the cause
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; Section 7 Civil Procedure Act and Section 66(3) Companies Act, 2015 invoked

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, "Kimani & 18 others v Kwa Ndege Limited & 3 others (Environment & Land Case E089 of 2022) [2024] KEELC 373 (KLR)", Case Analysis (2024). Machakos ELC (not stated in excerpt; relates to prior Machakos ELC No. 65 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/373/eng@2024-01-31

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