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ELCDismissed· [2024] KEELC 3636 (KLR)

Sanyi Jituan Sensen Investment Limited & another v Equity Bank of Kenya Limited & another (Environment & Land Case E024 of 2024) [2024] KEELC 3636 (KLR)

Environment and Land Court
5 April 2024
EWE. K. Wabwoto
1,175 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to strike out a land dispute suit, ruling that striking out cases is a drastic step reserved for exceptional situations only.

What this practically means

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Executive summary

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The 1st Defendant filed a Notice of Motion dated 2nd February 2024 seeking to strike out the Plaint dated 25th January 2024 together with costs. It argued that the Plaintiffs had previously filed ELC E210 of 2023 involving the same parties and subject matter, which they withdrew on 29th January 2024 after obtaining orders in the present suit; that the 1st Plaintiff is also a defendant in ELC E075 of 2023, proceedings not disclosed; and that the Plaintiffs' conduct amounted to an abuse of process risking conflicting orders. The application was supported by an affidavit of Kariuki King'ori, the 1st Defendant's Legal Manager, and opposed through a Replying Affidavit of Ye Yongqing, a director of the Plaintiffs, who deposed that ELC E075 of 2023 did not cover the 2nd Plaintiff's property L.R No. 4858/4 Kileleshwa. Both sides filed written submissions. The court framed the sole issue as whether the suit should be struck out, observing that striking out is draconian and reserved for exceptional cases. Although the parties overlapped with E075 of 2023, the instant suit concerned LR No. 4858/4 Kileleshwa, not listed in the other suits, so the Section 7 Civil Procedure Act bar of res judicata was not satisfied. No evidence was adduced by the 1st Defendant in support of the application. The suit disclosed triable issues fit for trial. The application dated 2nd February 2024 was dismissed with costs to the Plaintiffs in a ruling delivered virtually at Nairobi on 5th April 2024 by E. K. Wabwoto, Judge.

Key legal issues

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Whether the suit should be struck out as res judicata given ELC E210 of 2023 and ELC E075 of 2023

Holding

Not a proper case for striking out; the suit involves L.R No. 4858/4 Kileleshwa which was not part of the other suits, and the 1st Defendant adduced no evidence in support of the application

Reasoning

Although the parties in this suit are the same as in E075 of 2023, the instant suit includes property LR No. 4858/4 Kileleshwa which was not among the properties in the other suits, so the five elements of res judicata under Section 7 of the Civil Procedure Act are not established. Further, striking out is draconian, and no evidence was adduced by the 1st Defendant. The suit discloses triable issues properly reserved for trial.

p. 3

Legal principles established

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  • Striking out a suit is a draconian remedy available only in exceptional circumstances in the post-2010 constitutional era
  • A suit disclosing triable issues should not be struck out

Court orders

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  1. 1.The 1st Defendant's Notice of Motion application dated 2nd February 2024 is dismissed
  2. 2.Costs of the application awarded to the Plaintiffs

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (3)

  • The Cooperative Merchant Bank Ltd. 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
  • D.T. Dobie & Company Kenya Limited v Joseph Mbaria Muchina & Another
    [1980] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under Section 7 of the Civil Procedure Act (res judicata) considered; specific enabling provision not cited

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, "Sanyi Jituan Sensen Investment Limited & another v Equity Bank of Kenya Limited & another (Environment & Land Case E024 of 2024) [2024] KEELC 3636 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3636/eng@2024-04-05

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