Mwataamu & 3 others v Carlita Limited & 4 others (Environment & Land Case E006 of 2023) [2024] KEELC 5447 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Res judicata
The suit is not res judicata Mombasa ELC No 23 of 2020 because the issues (alleged amalgamation and fraud) and the parties differ from those in the former suit
The former suit concerned eviction of traders from Kwale/Diani Beach Block/155 and was decided on formal proof. The present suit raises allegations of amalgamation into Kwale/Diani Beach Block/1166 and fraud never raised in the former suit. The Defendants in the former suit were traders, not the present Plaintiffs; only Diani Square Limited overlaps. The elements of section 7 of the Civil Procedure Act were therefore not satisfied.
Striking out the plaint for a defective verifying affidavit
The court declined to strike out the plaint despite non-disclosure of the withdrawn Kwale ELCC No. E028 of 2023, holding that striking out is draconian and there are triable issues
Order 4 grants the court discretion to strike out a non-compliant plaint, but striking out is extreme and should be reserved for clear cases of abuse of process or frivolous claims. The alleged non-disclosure and the merits of the Plaintiffs' claim can be tested at trial through cross-examination.
Interim protection of the suit property
Status quo orders, as described in the site visit report, plus a prohibition on demolition and construction, were granted in place of the injunctions
The court found both parties in occupation per the Deputy Registrar's site visit report. Since the disputed issues of ownership and alleged fraud cannot be unbundled at interlocutory stage, a status quo order preserving the existing situation pending trial was the appropriate remedy, rather than an injunction requiring proof of a prima facie case.
Legal principles established
#- For the res judicata bar to be upheld the five elements must be satisfied conjunctively
- Striking out pleadings is a draconian measure reserved for the clearest of cases; non-compliance with the verifying affidavit requirement is a curable irregularity
- A status quo order is an ancillary preservation order distinct from an injunction and does not depend on proof of a prima facie case
Court orders
#- 1.The application dated 31/8/23 is dismissed
- 2.Pending hearing and determination of the suit, status quo be maintained on the suit property/properties as described in the Deputy Registrar's Amended Site Visit Report
- 3.No demolition, new construction or continuing construction of whatsoever nature on the suit property/properties
- 4.Parties to comply with Order 11 requirements within 30 days of the ruling
- 5.Costs to abide the outcome of the main suit
- Jurisdiction invoked
- Article 162(2) of the Constitution and the Environment and Land Court Act (No. 19 of 2011)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwataamu & 3 others v Carlita Limited & 4 others (Environment & Land Case E006 of 2023) [2024] KEELC 5447 (KLR)", Case Analysis (2024). ELCLC E006 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5447/eng@2024-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.