Masha v Kenya Pipeline Company Limited (Land Case E012 of 2023) [2025] KEELC 1342 (KLR)

The court took judicial notice that the plaintiffs had not acknowledged the earlier suit in their plaint, and had not denied being parties in it over the same property. The earlier ruling of 9th April 2019 had determined the application for temporary injunction and dismissed it with costs, holding the plaintiffs had no claim over plot 4182. That ruling was never challenged or rebutted. Filing a fresh suit seeking similar orders was thus res judicata and an abuse of process under section 7 of the Civil Procedure Act.

The plaint and application dated 9th February 2025 were filed without the authority of the 55 other residents, in breach of Order 1 Rule 13 of the Civil Procedure Rules; the authority letter of 20th February 2025 post-dated the suit, confirming it was filed without authority. The plaintiff also failed to disclose the existence of the earlier suit. The court held that although failure to annex authority may not by itself justify striking out, the resulting lack of candidness and concealment when obtaining urgent certification and exparte orders justified vacating the interim order of 10th February 2025.

The defendant's application cited Order 1 Rule 10(2), (4) Rule 14 & 25 of the Civil Procedure Rules, which deal with substitution and addition of parties and the procedure for moving the court orally or by chamber summons. Those provisions have nothing to do with setting aside or vacating interim orders or striking out suits. Relying on the Court of Appeal decision in Mariga & 2 Others v Mariga & Another, the court held the application was fatally defective and incompetent and struck it out with costs, but still proceeded to vacate the interim exparte order given the concealment findings.