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ELCPartially AllowedELC Case of 2019 (Plaint dated 18th November 2019), Machakos· [2024] KEELC 509 (KLR)

Mitaboni Katani Company Limited v Muinde & 5 others (Environment & Land Case 126 of 2019) [2024] KEELC 509 (KLR)

Environment and Land Court
7 February 2024
COChristine Ochieng
2,735 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a land dispute lawsuit because it was re-litigating a claim already decided and upheld on appeal.

What this practically means

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Executive summary

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The 1st and 2nd Defendants moved the Court by Notice of Motion dated 30th November 2022 under Order 2 Rule 15 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking striking out of the Plaintiff's Plaint dated 18th November 2019 and dismissal of the suit with costs. They argued that the Court lacked jurisdiction over claims of fraud and breach of duty by directors, that the Plaint disclosed no reasonable cause of action, was scandalous, frivolous and vexatious, was intended to prejudice the fair trial of a matter pending at the Court of Appeal, and was res judicata. The Plaintiff opposed, asserting the Court's jurisdiction under Article 162(b) of the Constitution and Section 13(2) of the Environment and Land Court Act, denying that it had been struck off the register of companies and that the previous litigation involved the same cause of action. The 3rd and 4th Defendants supported the application. The court framed a single issue: whether the Plaint should be struck out and the suit dismissed. Applying Section 7 of the Civil Procedure Act and the res judicata tests in John Florence Maritime Services and related authorities, the court found that the fulcrum of the dispute - land parcel Mavoko Town Block 2/199 - was the same as in Machakos ELC No. 112 of 2009, where judgment was entered for the Defendants on 2nd March 2018, an outcome upheld on appeal in Nairobi Civil Appeal No. 58 of 2019 dismissed on 7th August 2020. The parties and title were the same; the Plaintiff had merely clothed the same claim in fresh apparel. The suit was accordingly res judicata, an abuse of process and failed to disclose a reasonable cause of action. The application was allowed; the Plaint was struck out and the suit dismissed with costs to the Defendants.

Key legal issues

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Whether the suit is res judicata in respect of Machakos ELC No. 112 of 2009 (Peter Mutua Muinde & Dominic Musei Ikombo v Geoffrey Kithuka Mwangangi & Hellena Cheserem) and Nairobi Civil Appeal No. 58 of 2019

Holding

The suit is res judicata; the fulcrum of the dispute, the parties and the title are the same as in the previous suit, which was heard and determined on merit and upheld on appeal

Reasoning

Applying Section 7 of the Civil Procedure Act and the five-element test in John Florence Maritime Services (identity of matter in issue, parties, title, jurisdiction and finality), the court found that the plaintiff had simply clothed the same claim in fresh apparel. The previous suit concerned the same land, Mavoko Town Block 2/199, was heard and determined on merit, and the appeal was dismissed on 7th August 2020.

p. 6
02

Whether the Plaint should be struck out under Order 2 Rule 15 of the Civil Procedure Rules

Holding

The Plaint does not disclose a reasonable cause of action, is scandalous, frivolous and vexatious and amounts to an abuse of the court process, and is therefore struck out

Reasoning

Guided by D.T. Dobie v Muchina and Ramji Megji Gudka on the sparing exercise of the striking-out power, the court found the claim re-litigated a matter already determined up to the Court of Appeal, rendering the Plaint an abuse of process that ought to be struck out with costs.

p. 6

Legal principles established

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  • A suit whose subject matter, parties and title are the same as a previously heard and determined suit is res judicata and constitutes an abuse of the court process; litigation must come to an end
  • The power to strike out pleadings must be exercised sparingly and only in the clearest of cases, without embarking on the merits

Court orders

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  1. 1.The Notice of Motion Application dated 30th November 2022 is allowed
  2. 2.The Plaint dated 18th November 2019 is struck out
  3. 3.The suit is dismissed with costs to the Defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(a), (b), (c) and (d)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure ActSection 7 (including Explanations 1-6)
  • Companies ActSection 905
  • Environment and Land Court ActSection 13(2)
  • Constitution of KenyaArticle 162(b)

Cases cited (7)

  • Ramji Megji Gudka Ltd v Alfred Morfat Omundi Michira & 2 Others
    [2005] eKLR
  • Dt Dobie & Company (Kenya) Ltd v Muchina
    [1982] KLR 1
  • Delphis Bank Limited v Caneland Limited
    [2014] eKLR
  • Stephen Wanganga Njoroge v Stanley Ngugi Njoroge & Another
    (2017) eKLR
  • Uhuru Highway Development Ltd v Central Bank & Others
    CA No. 36 of 1996
  • John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015)
    [2021] KESC 39 (KLR) (Civ) (6 August 2021)
  • Bernard Mugo Ndegwa v James Nderitu Githae & 2 others
    (2010) eKLR
Jurisdiction invoked
Article 162(b) of the Constitution and Section 13(2) of the Environment and Land Court Act (jurisdiction contested in the application); striking-out jurisdiction under Order 2 Rule 15 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 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, "Mitaboni Katani Company Limited v Muinde & 5 others (Environment & Land Case 126 of 2019) [2024] KEELC 509 (KLR)", Case Analysis (2024). ELC Case of 2019 (Plaint dated 18th November 2019), Machakos. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/509/eng@2024-02-07

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