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ELCPartially AllowedELCLC E006 of 2023

Mwataamu & 3 others v Carlita Limited & 4 others (Environment & Land Case E006 of 2023) [2024] KEELC 5447 (KLR)

Environment and Land Court
22 July 2024
5,780 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kwale (A.E. Dena J) determined two interlocutory applications in a land dispute over parcels Kwale/Diani Beach Block/1168-1221 in Diani. The Plaintiffs, claiming to own parcels arising from the subdivision of Kwale/Diani Beach Block/1166 (itself allegedly an amalgamation of parcels 155, 157 and 346), sought temporary and prohibitory injunctions against the 2nd and 3rd Defendants, alleging trespass, encroachment and threatened demolition after an alleged invasion of their construction site. The 2nd and 3rd Defendants applied to dismiss the suit as res judicata Mombasa ELC No 23 of 2020 (Diani Square Limited v Jacqueline Lepele & Others), in which eviction orders over parcel 155 were issued, and alternatively to strike out the plaint for a false verifying affidavit concealing a withdrawn prior suit. The Attorney General opposed, contending the res judicata ingredients were absent. The court, applying section 7 of the Civil Procedure Act and the conjunctive elements in IEBC v Maina Kiai, held that the issues (alleged amalgamation and fraud) and parties in the two suits differ, so the suit is not res judicata. It declined to strike out the plaint, holding striking out is draconian and non-disclosure of the withdrawn suit is a curable irregularity testable at trial. Finding both parties in occupation per a site visit report, the court substituted the injunctions with status quo orders, prohibited demolition and construction, directed Order 11 compliance within 30 days, and ordered costs to abide the main suit.

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 Mombasa ELC No 23 of 2020 (Diani Square Limited v Jacqueline Lepele & Others)
  2. 2.Whether the plaint should be struck out for being accompanied by a false verifying affidavit in violation of Order 4 Rule 1(1)(f) and 4(2) of the Civil Procedure Rules
  3. 3.Whether to grant the temporary and prohibitive injunctions sought by the Plaintiffs

Key legal issues

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01

Res judicata

Holding

The suit is not res judicata Mombasa ELC No 23 of 2020 because the issues (alleged amalgamation and fraud) and the parties differ from those in the former suit

Reasoning

The former suit concerned eviction of traders from Kwale/Diani Beach Block/155 and was decided on formal proof. The present suit raises allegations of amalgamation into Kwale/Diani Beach Block/1166 and fraud never raised in the former suit. The Defendants in the former suit were traders, not the present Plaintiffs; only Diani Square Limited overlaps. The elements of section 7 of the Civil Procedure Act were therefore not satisfied.

p. 7
02

Striking out the plaint for a defective verifying affidavit

Holding

The court declined to strike out the plaint despite non-disclosure of the withdrawn Kwale ELCC No. E028 of 2023, holding that striking out is draconian and there are triable issues

Reasoning

Order 4 grants the court discretion to strike out a non-compliant plaint, but striking out is extreme and should be reserved for clear cases of abuse of process or frivolous claims. The alleged non-disclosure and the merits of the Plaintiffs' claim can be tested at trial through cross-examination.

p. 9
03

Interim protection of the suit property

Holding

Status quo orders, as described in the site visit report, plus a prohibition on demolition and construction, were granted in place of the injunctions

Reasoning

The court found both parties in occupation per the Deputy Registrar's site visit report. Since the disputed issues of ownership and alleged fraud cannot be unbundled at interlocutory stage, a status quo order preserving the existing situation pending trial was the appropriate remedy, rather than an injunction requiring proof of a prima facie case.

p. 11

Legal principles established

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  • For the res judicata bar to be upheld the five elements must be satisfied conjunctively
  • Striking out pleadings is a draconian measure reserved for the clearest of cases; non-compliance with the verifying affidavit requirement is a curable irregularity
  • A status quo order is an ancillary preservation order distinct from an injunction and does not depend on proof of a prima facie case

Court orders

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  1. 1.The application dated 31/8/23 is dismissed
  2. 2.Pending hearing and determination of the suit, status quo be maintained on the suit property/properties as described in the Deputy Registrar's Amended Site Visit Report
  3. 3.No demolition, new construction or continuing construction of whatsoever nature on the suit property/properties
  4. 4.Parties to comply with Order 11 requirements within 30 days of the ruling
  5. 5.Costs to abide the outcome of the main suit

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) of the Constitution and the Environment and Land Court Act (No. 19 of 2011)
Consolidated with
ELCC 9 of 2023 (mentioned in the appearance list)

Relief refused

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Application dated 31/8/2023 seeking dismissal of the suit as res judicata and striking out of the plaint

The issues in the present suit were not directly and substantially the same as in Mombasa ELC No 23 of 2020 and the parties differ; striking out pleadings is a draconian remedy not warranted here

p. 7

Temporary and prohibitive injunctions sought by the Plaintiffs

The issues are highly contentious and cannot be determined at interlocutory stage; status quo orders suffice

p. 9

Costs

Costs shall abide the outcome of the main suit

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 finding of this court is that the issues in the present suit are not directly and substantially the same issues in Mombasa ELC No 23 of 2020.
p. 7res judicata
Based on the foregoing it is my finding that the present suit is not res judicata and it is properly before court.
p. 7res judicata
Striking out of pleadings is a draconian move and the courts are enjoined where possible to sustain a pleading rather than striking it.
p. 8striking out pleadings
Pending the hearing and determination of this suit the Status quo be maintained on the suit property/properties herein.
p. 11final orders - status quo
Additionally, there shall be no demolition, new construction or continuing construction of whatsoever nature on the suit property/properties herein.
p. 11final orders - preservation
Costs shall abide the outcome of the main suit.
p. 11final orders - costs

Issues in the judgment

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minor

The case is styled a ruling on two interlocutory applications and the output schema refers to judgment; the document is headed 'RULING'

minor

Numbering error in the judgment: paragraph 30 is repeated and the issues for determination are numbered '35.' twice

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, "Mwataamu & 3 others v Carlita Limited & 4 others (Environment & Land Case E006 of 2023) [2024] KEELC 5447 (KLR)", Case Analysis (2024). ELCLC E006 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5447/eng@2024-07-22

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