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ELCDismissedELC Case of 2008 (Mombasa) - ruling on Notice of Preliminary Objection by 13th–15th Defendants and Application dated 11th December 2023 by 16th–19th Defendants· [2024] KEELC 5437 (KLR)

Ethics & Anti-Corruption Commission of Kenya v Maxtowers Limited & 20 others; Kenya Revenue Authority (Interested Party) (Environment & Land Case E022 of 2023) [2024] KEELC 5437 (KLR)

Environment and Land Court
24 July 2024
1,003 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Mombasa ruled that directors accused of land fraud must personally defend the claims, and refused to strike out Delgreen's long-running suit.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Mombasa (N.A. Matheka, J) in a long-running land suit by Delgreen Limited concerning ownership of L.R No. Mombasa/Island/Block XXVI/1081 and neighbouring parcels. Two interlocutory applications were before the court. First, the 13th, 14th and 15th defendants raised a preliminary objection claiming they were wrongly sued in their personal capacities as directors of the 12th defendant, contrary to the corporate personality of a company. Second, the 16th to 19th defendants applied by notice dated 11th December 2023 for the suit to be struck out as an abuse of process, arguing it was res sub judice to ELC 55 of 2008 (Delgreen Limited v Odindo Alfred & 14 Others). The court restated the classic definition of a preliminary objection from Mukisa Biscuits Manufacturing Ltd v West End Distributors and the Supreme Court's guidance in IEBC v Jane Cheperenger. It held that since the plaint expressly alleges the 13th to 15th defendants personally, fraudulently and illegally caused registration of the suit property in their names, they must be given an opportunity to defend those fraud allegations; the objection was dismissed with costs. On the striking-out application, the court found it identical to one it had dismissed in ELCC E021 of 2023 (ruling of 11th June 2024), and noted that this suit differs from ELC 55 of 2008 in both parties and claims, so it is not res sub judice. The court adopted its earlier ruling mutatis mutandis, dismissed the application with costs, and ordered accordingly.

Key legal issues

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01

Whether directors sued personally alongside their company are wrongly joined

Holding

Not wrongly joined where the plaint alleges personal participation in fraud in the transfer

Reasoning

The plaint at paragraph 49(g) alleges the 13th–15th defendants illegally and fraudulently caused registration of the suit property in their names in their personal capacities. A preliminary objection cannot dispose of factual questions of participation in fraud; such allegations must be tested at trial, so the defendants must answer them personally.

p. 3
02

Whether this suit is res sub judice to ELC 55 of 2008 (Delgreen Limited v Odindo Alfred & 14 Others)

Holding

It is not; the claims and parties differ

Reasoning

In ELC 55 of 2008 Delgreen Limited seeks vacant possession over L.R Nos. Mombasa Island/XXVI/1081, 1082 and 1015 against several defendants, while ELCC E021 of 2023 is a claim by the EACC challenging subdivision without approved part development plans. The parties differ except for Delgreen Limited and Kenya Revenue Authority, so there is no identity of parties or matters in issue.

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03

Abuse of process application dated 11th December 2023

Holding

Dismissed; the earlier ruling in ELCC E021 of 2024 applies mutatis mutandis

Reasoning

The court found the application identical to one by the same parties (then 11th–14th defendants) in ELCC 21 of 2023, which the court had dismissed in a ruling of 11th June 2024. Adopting that ruling mutatis mutandis to the suit property, the court dismissed the application with costs.

p. 3

Legal principles established

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  • A preliminary objection is a pure point of law argued on the assumption that all facts pleaded by the other side are correct
  • A true preliminary objection serves as a shield against waste of resources and conserves judicial time, and must not be used as a sword

Court orders

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  1. 1.The notice of preliminary objection by the 13th, 14th and 15th defendants is dismissed with costs
  2. 2.The application dated 11th December 2023 by the 16th, 17th, 18th and 19th defendants is dismissed with costs
  3. 3.The suit proceeds, with the 13th–15th defendants to defend allegations of fraud in their personal capacities

Authorities

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Legislation

  • Government Lands ActCap. 280
  • Registration of Titles ActCap 281
  • Registration of Lands ActCap 300
  • Government Financial Regulations and Procedures

Cases cited (4)

  • Mukisa Biscuits Manufacturing Ltd –vs– West End Distributors
    (1969) EA 696
  • Independent Electoral & Boundaries Commission vs Jane Cheperenger & 2 Others
    (2015) eKLR
  • Delgreen Limited vs Odindo Alfred & 14 Others
    ELC 55 of 2008
  • ELCC E021 of 2023 (EACC application, ruling of 11th June 2024)
    ELCC E021 of 2024
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over ownership and title to land (suit property L.R No. Mombasa/Island/Block XXVI/1081)

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, "Ethics & Anti-Corruption Commission of Kenya v Maxtowers Limited & 20 others; Kenya Revenue Authority (Interested Party) (Environment & Land Case E022 of 2023) [2024] KEELC 5437 (KLR)", Case Analysis (2024). ELC Case of 2008 (Mombasa) - ruling on Notice of Preliminary Objection by 13th–15th Defendants and Application dated 11th December 2023 by 16th–19th Defendants. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5437/eng@2024-07-24

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