Kimani & 18 others v Kwa Ndege Limited & 3 others (Environment & Land Case E089 of 2022) [2024] KEELC 373 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the suit is res judicata given the previous Machakos ELC No. 65 of 2012
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.
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.
Whether the 2nd Defendant should be struck out as non-existent following the KCB/NBK merger and change of name
The suit against the 2nd Defendant cannot be struck out on account of change of name; absent documentary proof, the facts require evidentiary ascertainment.
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.
Legal principles established
#- 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
#- 1.The Notice of Preliminary Objection dated 10th January, 2023 is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.