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ELCDismissedMalindi ELC (unnumbered in extract; Defendants' Notice of Motion dated 9th October 2023 and Notice of Preliminary Objection dated 23rd October 2023)

Nuraini & another (Suing as Administrators of the Estate of the Late Sadrudin Shamsudin Nurani) v Glitter Venture Limited & 23 others; Bissetto & another (Third party) (Environment & Land Case E10 of 2020) [2024] KEELC 1240 (KLR)

Environment and Land Court
6 March 2024
2,369 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Malindi Land Court allowed a family's fraud claim over Chembe/Kibabamshe/367 to proceed to trial, rejecting arguments that an earlier adverse possession case blocked it.

What this practically means

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Executive summary

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The 5th, 15th and 16th Defendants brought a Notice of Motion dated 9th October 2023 under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 2 Rule 15 of the Civil Procedure Rules seeking to strike out the Plaintiffs' suit, supported by a Notice of Preliminary Objection dated 23rd October 2023 filed by ten other Defendants. The Defendants argued that the suit, concerning LR No. Chembe/Kibabamshe/367, was res judicata Malindi HCCC No. 90 of 2006, in which Shadrack Katana Ndundi obtained ex-parte judgment for adverse possession against Sadrudin Shamsudin Esmail Nurani and Ramesh Lali Aggrawal, and that the Plaintiffs lacked locus standi for want of consent from the administrators of the estate of Ramesh Lali. The Plaintiffs opposed, asserting that no final determination existed in the former suit since the judgment was set aside and the suit withdrawn by consent on 29th March 2021, and exhibiting a consent dated 22nd January 2015. Justice Mwangi Njoroge held that a suit may be withdrawn even after judgment but only with the court's leave, which was granted when the withdrawal was recorded by consent on 29th March 2021; the former suit therefore ceased to exist. Although the parties litigated in privity with the former parties, the issues were not directly and substantially similar - the former claim rested on adverse possession while the present claim alleges fraud - so res judicata did not apply. The locus objection was untenable given the exhibited consent. The court found no basis for striking out the suit, dismissed both the motion and the preliminary objection with costs to the Plaintiffs, and directed compliance with Order 11, with the suit to be mentioned on 6th May 2024 for a hearing date.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the present suit is res judicata Malindi HCCC 90 of 2006.
  2. 2.Whether plaintiffs have locus standi to sustain this suit on behalf of the estate of Ramesh Lali.
  3. 3.Whether this suit should be struck out.

Key legal issues

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01

Whether the suit is res judicata Malindi HCCC 90 of 2006

Holding

No - although the parties litigate in privity, the issues differ: the former suit was based on adverse possession while the present claim is founded on alleged fraud.

Reasoning

Section 7 of the Civil Procedure Act requires that the matter directly and substantially in issue have been heard and finally decided in a former suit between the same parties or their privies. While privity exists here, the causes of action differ - adverse possession versus fraud - and the plaintiffs' allegation that Shadrack Katana never filed the former suit or stayed on the land changes the case entirely. Further, the former suit was withdrawn by consent on 29th March 2021 with the court's leave, so it ceased to exist.

p. 5
02

Effect of the withdrawal of Malindi HCCC 90 of 2006 after judgment

Holding

The withdrawal was validly effected with the court's leave recorded by consent on 29th March 2021; the court was not functus officio.

Reasoning

The defendants argued the court became functus officio after judgment and execution. The court held that leave is required for post-judgment withdrawal precisely because rights have crystallised, and that such leave was granted when the withdrawal was recorded by consent in the presence of both counsel. Authorities including PIL Kenya Ltd v Joseph Oppong and Karisa Chengo Nguma support post-judgment withdrawal with leave.

p. 4
03

Whether plaintiffs lack locus standi for want of consent of the administrators of the estate of Ramesh Lali

Holding

The objection is untenable - a consent dated 22nd January 2015 was obtained and exhibited in the Replying Affidavit.

Reasoning

The defendants contended that under Section 91 of the Land Registration Act one co-tenant could not deal with the land without the other's consent, so the plaintiffs needed the administrators' consent. The court noted the consent dated 22nd January 2015 was annexed to the Replying Affidavit and accepted the plaintiffs' submission that the issue was cured.

p. 5
04

Whether the suit should be struck out

Holding

No - having found no res judicata and no locus standi defect, there is no basis for striking out.

Reasoning

The application under Order 2 Rule 15 sought striking out on the ground of res judicata. Having rejected the res judicata plea and the locus objection, the court found no basis to strike out the suit and dismissed the motion and preliminary objection with costs to the plaintiffs, directing the parties to comply with Order 11 ahead of trial.

p. 5

Legal principles established

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  • A suit may be withdrawn even after judgment, but the leave of the court is necessary because rights of the parties have crystallised.
  • A consent withdrawal recorded by the court extinguishes the former suit, which ceases to exist.
  • Res judicata requires the issues in the two suits to be directly and substantially similar, not merely parties in privity.

Court orders

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  1. 1.The Notice of Motion dated 9th October 2023 is dismissed
  2. 2.The Notice of Preliminary Objection dated 23rd October 2023 is dismissed
  3. 3.Costs of both the application and preliminary objection awarded to the plaintiffs
  4. 4.Parties to comply with Order 11 by filing consolidated trial bundles - plaintiffs within the first 30 days and defendants within the following 30 days
  5. 5.Suit to be mentioned on 6/5/2024 for issuance of a hearing date

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution / Environment and Land Court Act (ELC jurisdiction over land disputes); Civil Procedure Act Cap 21

Relief refused

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Striking out of the plaintiffs' suit

No basis found for striking out; res judicata not established and consent issue cured

p. 5

Costs

Both notice of motion dated 9th October 2023 and Notice of Preliminary Objection dated 23rd October 2023 dismissed with costs to the plaintiffs.

Quotable passages

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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 net result is that the suit Malindi ELC 90 of 2006 ceased to exist after 29th March 2021.
p. 5effect of consent withdrawal of a former suit
the parties herein are in one way or another litigating in privity with the original parties in the former suit. However, I am not convinced that the issues raised are directly or substantially similar in the two suits.
p. 5res judicata - similarity of issues
I have seen the said consent dated 22nd January 2015, I therefore agree with the Plaintifis that this issue is untenable at present.
p. 5locus standi - consent of co-owner's administrators
The upshot is that both notice of motion dated 9th October 2023 and Notice of Preliminary Objection dated 23rd October 2023 are hereby dismissed with costs to the plaintifis.
p. 5final orders - dismissal of motion and preliminary objection
The parties shall comply with Order 11 of the Civil Procedure Rules by filing their respective consolidated trial bundles duly indexed and paginated, the plaintifis within the first 30 days and the defendants within the 30 days following and the suit shall be mentioned on 6/5/2024 for issuance of a hearing date.
p. 5case management directions

Issues in the judgment

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minor

Plaintiffs' and 1st Defendant's names are not fully set out in the extract; parties identified only by role and defendant numbers

minor

Inconsistent spelling of the co-owner's name in the judgment (Ramesh Lali Aggrawal / Ramesh Lail / Ramesh Lali Aggarwal)

minor

The former suit is referenced variously as Malindi Civil Case No. 90 of 2006, Malindi HCCC 90 of 2006 and Malindi ELC No. 90 of 2006

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, "Nuraini & another (Suing as Administrators of the Estate of the Late Sadrudin Shamsudin Nurani) v Glitter Venture Limited & 23 others; Bissetto & another (Third party) (Environment & Land Case E10 of 2020) [2024] KEELC 1240 (KLR)", Case Analysis (2024). Malindi ELC (unnumbered in extract; Defendants' Notice of Motion dated 9th October 2023 and Notice of Preliminary Objection dated 23rd October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1240/eng@2024-03-06

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