Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedELC Constitutional Petition dated 10th February 2022 (number not stated in the ruling)· [2024] KEELC 544 (KLR)

Haji & 4 others (Suing for and on Behalf of One Hundred and Sixty Residents of Plot Number 232/XVII) v SBS Properties (2016) Limited & 3 others; National Land Commission & another (Interested Parties) (Constitutional Petition 03 of 2022) [2024] KEELC 544 (KLR)

Environment and Land Court of Kenya
31 January 2024
6,093 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court struck out a land dispute petition because it re-litigated issues already decided, and ordered the filers to pay the winners' costs.

What this practically means

#

Executive summary

#
This is an unopposed ruling of the Environment and Land Court at Mombasa (Naikuni J, delivered virtually on 31st January 2024) on a Notice of Motion dated 22nd July 2023 by the 1st and 2nd Applicants/Respondents, SBS Properties (2016) Limited and Seif Said, Laila Mohamed Seif and Seif Bin (sued on behalf of the Estate of Said Bin Salim), seeking striking out of the Petitioner's Petition and Notice of Motion both dated 10th February 2022 for offending Section 7 of the Civil Procedure Act (res judicata). The application followed a prior ruling of 9th March 2023 staying the Petition pending determination of ELC Constitutional Petition No. 155 of 2015, and a further ruling of 6th July 2023 in which Matheka J's judgment in that petition - which struck out an identical petition for offending constitutional avoidance - gave the Applicants liberty to file a res judicata application. The Petitioner filed no response despite consent directions. The court framed three issues: merit of the striking-out application, entitlement to reliefs, and costs. Reviewing Order 2 Rule 15 and D.T. Dobie v Muchina, it held the striking-out jurisdiction is discretionary and sparingly exercised, but on comparing paragraphs 1 to 55 of the Petition with the pleadings in ELC Constitutional Petition No. 155 of 2015, found the issues identical, involving the same parties and subject matter (land ownership and ground rent), already determined on 26th July 2022. The Petition was therefore res judicata, an abuse of process, and a product of forum shopping offensive to constitutional avoidance. The application was allowed in its entirety, the Petition and the application of 10th February 2022 struck out entirely, and costs of the petition and both motions awarded to the Applicants, payable by the Petitioners jointly and severally.

Key legal issues

#
01

Whether the Petition dated 10th February 2022 is res judicata in light of the judgment in ELC Constitutional Petition No. 155 of 2015

Holding

The Petition is res judicata, the issues having been pleaded, considered and determined by Matheka J in ELC Constitutional Petition No. 155 of 2015

Reasoning

The court compared paragraphs 1 to 55 of the Petition with the pleadings in ELC Constitutional Petition No. 155 of 2015 and found the issues substantially similar, with the Petitioner only re-clothing the dispute as a petition and referencing other properties as a means of forum shopping. The elements of Section 7 of the Civil Procedure Act were satisfied: same parties, same subject matter, determined by a competent court on 26th July 2022.

p. 10
02

Whether the Petition amounts to an abuse of process and violates the doctrine of constitutional avoidance

Holding

Yes; the Petition abuses court process and offends constitutional avoidance because ordinary civil remedies in the Environment and Land Court were available

Reasoning

Relying on the dictum of Matheka J in the earlier petition and the authorities on constitutional avoidance cited there, the court held that disputes over ownership of land and payment of ground rent should be litigated in an ordinary civil claim, not by invocation of the Bill of Rights where the state is not a party. Filing the second petition with knowledge of the earlier suit was designed to circumvent the earlier proceedings.

p. 10
03

Who bears the costs of the application

Holding

The Petitioners, jointly and severally

Reasoning

Costs follow the event and are discretionary under Rule 26(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2010. The Petition was the second one filed by the Petitioner, obliging the Applicants to defend their positions, so costs of both the petition and the two motions were awarded to the Applicants.

p. 12

Legal principles established

#
  • The power to strike out pleadings is discretionary and must be exercised judicially, sparingly and cautiously
  • Res judicata bars subsequent proceedings on issues finally decided by a competent court between the same parties
  • Costs follow the event and are at the discretion of the court

Court orders

#
  1. 1.The Notice of Motion application dated 22nd July, 2023 by the 1st and 2nd Applicants/Respondents be and is hereby found to have merit and is allowed in its entirety
  2. 2.The Petition and Notice of Motion application dated 10th February, 2022 is found to be 'Res Judicata' and is hereby struck out entirely
  3. 3.The 1st and 2nd Applicants/Respondents shall have the costs of the Petition dated 10th February, 2022 and of the Notices of Motion dated 10th February, 2022 and 22nd July, 2023, to be paid by the Petitioners jointly and severally

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 2 Rule 15(1)
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Act, Cap. 21Sections 1A, 1B, 3A
  • Civil Procedure Act, Cap. 21Section 6 (sub judice)
  • Civil Procedure Act, Cap. 21Section 7 (res judicata)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2010Rule 26(1)
  • Constitution of Kenya, 2010Article 165(3)(a)

Cases cited (13)

  • Patrick Mbau Karanja v Kenyatta University (2012) eKLR
    (2012) eKLR
  • C.K. Bett Traders Limited & 2 others v Kennedy Mwangi & another [2021] eKLR
    [2021] eKLR
  • The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others [2017] eKLR
    Nairobi CA Civil Appeal No. 105 of 2017
  • Gideon Moi v Samuel Towett Kibowen [2018] eKLR
    [2018] eKLR
  • Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 2 others [2009] eKLR
    [2009] eKLR
  • Beinosi v Wiyley 1973 SA 721 [SCA]
    1973 SA 721 [SCA] at page 734F-G
  • D.T. Dobie & Company (Kenya) Limited v Muchina [1982] KLR 1
    [1982] KLR 1
  • Co-operative Merchant Bank Limited v George Fredrick Wekesa
    Civil Appeal No. 54 of 1999
  • Yaya Towers Limited v Trade Bank Limited (In Liquidation)
    Civil Appeal No. 35 of 2000
  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2015] eKLR
    [2015] eKLR
  • Maithene Malindi Enterprises Limited v Kaniki Karisa Kaniki & 2 others [2018] eKLR
    [2018] eKLR
  • Henderson v Henderson [1843] 67 ER 313
    [1843] 67 ER 313
  • Kenya Airways Limited v Classical Travel and Tours Limited
    Nairobi HCCC No. 694 of 2003 (unreported)
Jurisdiction invoked
Order 2 Rule 15(1)(b)(c) & (d) and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 1A, 1B, 3A & 7 of the Civil Procedure Act, Cap. 21

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Haji & 4 others (Suing for and on Behalf of One Hundred and Sixty Residents of Plot Number 232/XVII) v SBS Properties (2016) Limited & 3 others; National Land Commission & another (Interested Parties) (Constitutional Petition 03 of 2022) [2024] KEELC 544 (KLR)", Case Analysis (2024). ELC Constitutional Petition dated 10th February 2022 (number not stated in the ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/544/eng@2024-01-31

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