Sagalla Ranchers Ltd v Izera Enterprises Ltd & another [2019] KEELC 1817 (KLR)
The bottom line
#A Kenyan court refused to reinstate a land suit dismissed for delay, ruling you cannot run two cases over the same property.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there is sufficient cause to set aside the order dismissing the suit for want of prosecution made on 11th October 2017
- 2.Whether a temporary injunction should issue pending hearing of the suit
Key legal issues
#Sufficient cause for setting aside dismissal for want of prosecution
Dismissal not set aside; service of the notice to show cause by post shifted the burden to the plaintiff to rebut receipt, and the plaintiff failed to explain the lull from February 2016 to September 2017
The court held that notice issued and was served by post, placing the burden on the plaintiff to rebut receipt. The plaintiff's assertion that her advocates were not served was unsupported by evidence, and no explanation was given for the inaction between February 2016 and September 2017. The plaintiff's own cited authorities were distinguishable.
Abuse of court process by duplicity of suits
The plaintiff was simultaneously prosecuting an earlier suit (Voi HCCC No. 1 of 2018, formerly Mombasa HCCC No. 86 of 2014) over the same subject matter, rendering reinstatement here an abuse made in bad faith
The plaints in both suits were dated and filed close in time over the same property. The court, applying Abud Abdalla Omar v Kenya Ports Authority, found the plaintiff would not be left without a remedy since the earlier suit remained live, so reinstatement was unnecessary and made in bad faith.
Whether an injunction could issue pending hearing
Refused because, reinstatement having been declined, there was no suit before the court
The injunction was ancillary to the reinstatement prayer. Once reinstatement was refused, the substratum of the application fell away, and an injunctive order cannot issue in a suit that stands dismissed.
Legal principles established
#- An injunction cannot issue where no suit is before the court
- In setting aside ex parte orders, courts apply the Mbogo v Shah principles on excusable mistake, and reinstatement should not be granted where it would delay or obstruct justice or amount to abuse of process
- Filing and prosecuting two suits over the same subject matter in separate courts amounts to abuse of court process
Court orders
#- 1.The application dated 28th December 2017 be and is hereby dismissed with costs to the defendants/respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B & 3A of the Civil Procedure Act and Orders 12 rule 7, 17, 40, 50 & 51 of the Civil Procedure Rules
Relief refused
#Setting aside the dismissal order of 11th October 2017 (prayer 2)
No sufficient cause shown; notice to show cause was served by post and the plaintiff did not explain the inaction between February 2016 and September 2017; a similar suit exists in Voi HCCC No. 1 of 2018
Temporary injunction restraining interference with LR No. 12177 (prayer 4)
No suit remains before the court following refusal of reinstatement
Costs
Application dismissed with costs to the defendants/respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is that the plaintiff has not satisfied me that she merits reinstatement of the dismissed suit. I decline to grant her prayer (2) of the motion.
Once order of reinstatement is declined there is no suit before me to warrant the grant of prayer (4) of the motion on the issuance of an injunction as an injunctive order cannot be issued where there is no suit.
In conclusion, the application dated 28th December 2017 be and is hereby dismissed with costs to the defendants/respondents for lacking in merit.
It seems the applicant wants to prosecute two suits over the same subject matter in two separate courts which action as pointed out by the defendants amounts to abuse of court process.
Issues in the judgment
#The plaintiff's name is never stated in the judgment; parties are referred to only as 'Plaintiff/Applicant' and by director's name
The judgment alternates between masculine and feminine pronouns for the plaintiff
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sagalla Ranchers Ltd v Izera Enterprises Ltd & another [2019] KEELC 1817 (KLR)", Case Analysis (2019). ELC Case (Mombasa) – Notice of Motion dated 28th December 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1817/eng@2019-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.