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)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the present suit is res judicata Malindi HCCC 90 of 2006.
- 2.Whether plaintiffs have locus standi to sustain this suit on behalf of the estate of Ramesh Lali.
- 3.Whether this suit should be struck out.
Key legal issues
#Whether the suit is res judicata Malindi HCCC 90 of 2006
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.
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 Further, the former suit was withdrawn by consent on 29th March 2021 with the court's leave, so it ceased to exist.
Effect of the withdrawal of Malindi HCCC 90 of 2006 after judgment
The withdrawal was validly effected with the court's leave recorded by consent on 29th March 2021; the court was not functus officio.
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.
Whether plaintiffs lack locus standi for want of consent of the administrators of the estate of Ramesh Lali
The objection is untenable - a consent dated 22nd January 2015 was obtained and exhibited in the Replying Affidavit.
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.
Whether the suit should be struck out
No - having found no res judicata and no locus standi defect, there is no basis for striking out.
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 9th October 2023 is dismissed
- 2.The Notice of Preliminary Objection dated 23rd October 2023 is dismissed
- 3.Costs of both the application and preliminary objection awarded to the plaintiffs
- 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.Suit to be mentioned on 6/5/2024 for issuance of a hearing date
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#Striking out of the plaintiffs' suit
No basis found for striking out; res judicata not established and consent issue cured
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
#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.
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.
I have seen the said consent dated 22nd January 2015, I therefore agree with the Plaintifis that this issue is untenable at present.
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.
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.
Issues in the judgment
#Plaintiffs' and 1st Defendant's names are not fully set out in the extract; parties identified only by role and defendant numbers
Inconsistent spelling of the co-owner's name in the judgment (Ramesh Lali Aggrawal / Ramesh Lail / Ramesh Lali Aggarwal)
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.