Ethics and Anti-Corruption Commission v Nesco Services Limited & 3 others; National Bank of Kenya (Interested Party) (Environment & Land Case E211 of 2023) [2024] KEELC 6661 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff's suit is a sham warranting striking out
The suit is not a sham; it raises triable issues that must be determined at a full hearing.
The court, cautious not to delve into merits, perused the pleadings and supporting documents and could not term the case bogus or false. Serious allegations of vendetta and bad faith require interrogation through cross-examination, and the 1st Defendant has filed a counterclaim. Even one triable issue suffices to defeat striking out.
Whether procedural non-compliance by the Plaintiff justifies striking out
The deviations do not go to jurisdiction nor fundamentally prejudice the 1st Defendant and are curable by amendment; they do not warrant striking out.
Applying Ringera J's exposition in Microsoft Corporation v Mitsumi, the court held rules of procedure are handmaidens of justice. The alleged violations of Orders 3 and 4 of the Civil Procedure Rules are curable omissions remediable by amendment of the plaint and do not nullify the proceedings.
Whether interim preservation orders should issue over the suit property
Yes; an interlocutory injunction restraining alienation, further charging, transfer or disposal of the suit property was issued pending determination of the suit.
Section 13(7) of the ELC Act empowers the court to grant interim preservation orders, consistent with the doctrine of lis pendens as embraced in Ruth Kinyua v Patrick Thuita Gichure. At the interlocutory stage the court preserves the state of things without making conclusive findings, to prevent defeat of the suit by alienation pendent lite.
Legal principles established
#- Striking out a suit is a drastic remedy to be exercised sparingly and only in obviously hopeless cases; procedural omissions that do not go to jurisdiction or fundamentally prejudice the adverse party are curable and do not warrant striking out.
- The ELC may grant interim preservation orders, aligned with the doctrine of lis pendens, to preserve the substratum of a suit pending final determination.
Court orders
#- 1.The 1st and 2nd Defendants' application dated 19th February 2024 seeking to strike out the Plaintiff's suit is disallowed with no orders as to costs
- 2.An interlocutory injunction pending the hearing and determination of the suit restraining the 1st Defendant by itself, agents, servants and/or employees or any other person from alienating, further charging, transferring or disposing of the suit property located in Nairobi West Area, off Lang'ata Road
- 3.The costs of the Plaintiff's application dated 14th December 2023 shall be in cause
- Jurisdiction invoked
- Section 13(7) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ethics and Anti-Corruption Commission v Nesco Services Limited & 3 others; National Bank of Kenya (Interested Party) (Environment & Land Case E211 of 2023) [2024] KEELC 6661 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6661/eng@2024-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.