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ELCPartially AllowedELC Case No. E023 OF 2023· [2025] KEELC 294 (KLR)

Ethics and Anti-Corruption Commission v Sampadoria Investments Limited & 3 others; National Water Harvesting and Storage Authority & 2 others (Interested Parties) (Environment & Land Case E023 of 2023) [2025] KEELC 294 (KLR)

Environment and Land Court
31 January 2025
6,957 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (Hon. Mr. Justice L. L. Naikuni) on a Notice of Motion dated 28th June 2024 by Sampadoria Investments Limited, the 1st Defendant in a suit by the Ethics and Anti-Corruption Commission seeking recovery of L.R No. MN/I/10401 at Shanzu, Mombasa, alleged to be public land irregularly allocated to the Applicant in 1997. The Applicant sought striking out or dismissal of the suit as statute-barred and an abuse of process, alternatively a stay or consolidation with its own earlier-filed-in-service suit, Mombasa ELC No. E023 of 2024 against the National Water Harvesting and Storage Authority and others, and the summoning of the Plaintiff's process server, Patrick Chirongo, for cross-examination on his Affidavit of Service of 7th December 2023. The EACC opposed through grounds of objection. Framing four issues, the court refused striking out, holding that striking out is a drastic remedy exercised sparingly and that assessing the plea would require examining evidence reserved for trial. On consolidation, it found common questions of law and fact over the same suit property, similar evidence and no prejudice since neither suit had been heard, and ordered consolidation with the EACC suit (filed first) as the lead file. Citing Order 5 Rule 16 and Order 19 Rule 2 of the Civil Procedure Rules and the Althaus authority, the court found conflicting affidavit evidence on service and held cross-examination of the process server warranted. The court made no order as to costs.

Key legal issues

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01

Striking out/dismissal of suit

Holding

Refused; striking out is drastic and discretionary

Reasoning

Applying Yaya Towers and Blue Shield, the court held that a claimant is entitled to pursue a claim however implausible unless it is demonstrably bound to fail or abusive. Whether the EACC suit disclosed a cause required examining evidence, a merits inquiry reserved for trial. The limitation argument under Section 7 of the Limitation of Actions Act could not be resolved summarily.

p. 8
02

Consolidation of suits

Holding

Granted; the two suits concern the same property and same parties

Reasoning

Guided by Section 81(2)(h) of the Civil Procedure Act, Order 11 Rule 3 and authorities including Prem Lala Nahata, Law Society of Kenya and Municipal Council of Mombasa, the court found common questions of law and fact, the same suit property (L.R No. MN/I/10401), likely identical documents and witnesses, and no prejudice since neither suit had been heard. The EACC suit, filed first, was designated lead file.

p. 11
03

Cross-examination of process server on Affidavit of Service

Holding

Granted; conflicting affidavit evidence justified examination of the process server

Reasoning

Under Order 5 Rule 16 and Order 19 Rule 2 of the Civil Procedure Rules, the court has discretion to examine a serving officer where service is disputed. Applying Republic v KRA ex-parte Althaus, the court found a good reason existed given conflicting affidavits on whether the Applicant was served, and cross-examination was warranted.

p. 11
04

Costs of the application

Holding

No orders as to costs

Reasoning

While costs follow the event under Section 27(1) of the Civil Procedure Act, the court reserved its discretion and declined to award costs, presumably because the application succeeded only in part.

p. 13

Legal principles established

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  • The power to strike out a pleading should be used very sparingly and only where the pleading is clearly untenable
  • Consolidation is to facilitate efficient and expeditious disposal and must not confer undue advantage on the party seeking it
  • Cross-examination of a deponent on affidavit evidence is discretionary, not a right, and must be justified on a proper foundation
  • Costs follow the event under Section 27(1) of the Civil Procedure Act, though the court retains discretion

Court orders

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  1. 1.Notice of Motion dated 28th June, 2024 partially allowed, strictly in respect to prayers 3 and 5
  2. 2.Consolidation of Mombasa ELC No. E023 of 2024 (Sampadoria Investments Limited v National Water Harvesting and Storage Authority & 4 Others) and ELC Case No. E023 OF 2023 (Ethics and Anti-Corruption Commission v Sampadoria Investments Limited & Others)
  3. 3.ELC Case No. E023 OF 2023, being the suit filed first, designated the lead file
  4. 4.Patrick Chirongo, the Plaintiff's legal clerk, summoned to appear before the Court on 3rd February, 2025 for cross-examination on the contents of his Affidavit of Service sworn on 7th December 2023
  5. 5.No orders as to costs
Jurisdiction invoked
Sections 1A, 1B, 3A and 81(2)(h) of the Civil Procedure Act, Cap. 21; Order 11 Rule 3 of the Civil Procedure Rules, 2010; Article 159 of the Constitution of Kenya, 2010

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 and Anti-Corruption Commission v Sampadoria Investments Limited & 3 others; National Water Harvesting and Storage Authority & 2 others (Interested Parties) (Environment & Land Case E023 of 2023) [2025] KEELC 294 (KLR)", Case Analysis (2025). ELC Case No. E023 OF 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/294/eng@2025-01-31

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