Abdi & another v Arvic Tours and Travels Ltd (Changed to Ainushmsi Multiple Agencies Ltd) & another (Environment and Land Case E003 of 2023) [2026] KEELC 5277 (KLR)

The court found that despite the withdrawn claim touching shareholding and directorship, the real dispute involves extinction of LR Nos. 10173 and 10174, amalgamation into LR No. 28432 and its subdivisions. These are environmental and land questions which the ELC, including Naikuni J in the former suit, was competent to handle. Jurisdiction therefore lies with this Court.

The Plaintiffs, Ainushamsi Hospitality Group Limited and Isaac Juma Obila were not parties to Mombasa ELC No. 130 of 2020. The 3rd Defendant did not counterclaim there. The Plaintiff and the 3rd Defendant assert adverse claims from distinct sources. The former suit concerned only LR No. 28432/2, whereas the counterclaim covers LR Nos. 10173, 10174 and 28432.

The present proceedings concern LR Nos. 10173, 10174 and 28432 while the appeal concerns only LR No. 28432/2. The Plaintiff and 3rd Defendant hold adverse claims and so cannot be litigating under the same title. Further, the consent order of 16th February 2023 had revoked LR No. 28432/2 before the former judgment was delivered.

The counterclaim did not reproduce the plaint's arrangement of parties, but it identifies the parties against whom relief is sought. Defects of form should be rectified by amendment rather than striking out a legitimate claim, and the counterclaim had already been amended to cure the anomaly.

The objections on res judicata and sub judice require examination of pleadings, timing, joinder, consent orders and factual material on ownership and dealings in the parcels. Such matters cannot be determined as pure points of law under the Mukisa Biscuit threshold.