Mwataamu & 3 others v Carlita Limited & 4 others (Environment & Land Case E006 of 2023) [2024] KEELC 5447 (KLR)
The bottom line
#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 Mombasa ELC No 23 of 2020 (Diani Square Limited v Jacqueline Lepele & Others)
- 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.Whether to grant the temporary and prohibitive injunctions sought by the Plaintiffs
Key legal issues
#Res judicata
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
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.
Striking out the plaint for a defective verifying affidavit
The court declined to strike out the plaint despite non-disclosure of the withdrawn Kwale ELCC No. E028 of 2023, holding that striking out is draconian and there are triable issues
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.
Interim protection of the suit property
Status quo orders, as described in the site visit report, plus a prohibition on demolition and construction, were granted in place of the injunctions
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.
Legal principles established
#- 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
#- 1.The application dated 31/8/23 is dismissed
- 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.No demolition, new construction or continuing construction of whatsoever nature on the suit property/properties
- 4.Parties to comply with Order 11 requirements within 30 days of the ruling
- 5.Costs to abide the outcome of the main suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Temporary and prohibitive injunctions sought by the Plaintiffs
The issues are highly contentious and cannot be determined at interlocutory stage; status quo orders suffice
Costs
Costs shall abide the outcome of the main suit
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 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.
Based on the foregoing it is my finding that the present suit is not res judicata and it is properly before court.
Striking out of pleadings is a draconian move and the courts are enjoined where possible to sustain a pleading rather than striking it.
Pending the hearing and determination of this suit the Status quo be maintained on the suit property/properties herein.
Additionally, there shall be no demolition, new construction or continuing construction of whatsoever nature on the suit property/properties herein.
Costs shall abide the outcome of the main suit.
Issues in the judgment
#The case is styled a ruling on two interlocutory applications and the output schema refers to judgment; the document is headed 'RULING'
Numbering error in the judgment: paragraph 30 is repeated and the issues for determination are numbered '35.' twice
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.