[2018] KEELC 2483 (KLR)
The court found that the plaintiff had previously filed a similar suit (Eldoret ELC Misc No. 2 of 2015) which was dismissed, and subsequently filed the present suit on the same subject matter after being denied leave to file out of time. The plaintiff did not oppose the application to strike out the suit and did not...
Source-derived case information.
- Citation
- [2018] KEELC 2483 (KLR)
- Parties
- Plaintiff: Joshua Kiptui Kiprop; Defendant: Agricultural Finance Corporation; Defendant: Gilbert KimaleL; Defendant: Luka Chemweno; Defendant: Johana Tele; Defendant: Lari Kiptum Cheum; Defendant: Sila Kimuge; Defendant: Tabitha Cheum; Defendant: Jimmy Sonyo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 296 of 2017
- Procedural Posture
- Notice of Motion / Ruling on Application to Strike Out and Dismiss Suit
- Outcome
- application allowed; suit dismissed with costs to defendants
- Legal Topics
- Striking Out of Suit, Abuse of Court Process, Cause of Action, Res Judicata
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Kiptui Kiprop
Plaintiff
Agricultural Finance Corporation
Defendant
Gilbert KimaleL
Defendant
Luka Chemweno
Defendant
Johana Tele
Defendant
Lari Kiptum Cheum
Defendant
Sila Kimuge
Defendant
Tabitha Cheum
Defendant
Jimmy Sonyo
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Strike Out and Dismiss Suit
Legal Issues
- 1 Whether the suit discloses a cause of action against the 2nd to 8th defendants.
- 2 Whether the suit amounts to an abuse of the court process due to prior litigation on the same matter.
- 3 Whether the names of the 2nd to 8th defendants should be struck out and the suit dismissed.
Ratio Decidendi
The court found that the plaintiff had previously filed a similar suit (Eldoret ELC Misc No. 2 of 2015) which was dismissed, and subsequently filed the present suit on the same subject matter after being denied leave to file out of time. The plaintiff did not oppose the application to strike out the suit and did not attend the hearing. The court held that the current suit does not disclose a cause of action against the 2nd to 8th defendants and amounts to an abuse of the court process. Consequently, the court allowed the application, struck out the names of the 2nd to 8th defendants, and dismissed the suit with costs to the defendants.
Court Disposition
application allowed; suit dismissed with costs to defendants
Orders
- The names of the 2nd to 8th defendants are struck out from the suit.
- The plaintiff's suit is dismissed with costs to the defendants.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT ELDORET
ELC NO. 296 OF 2017
JOSHUA KIPTUI KIPROP...................................................PLAINTIFF
VERSUS
AGRICULTURAL FINANCE CORPORATION......1ST DEFENDANT
GILBERT KIMALEL.................................................2ND DEFENDANT
LUKA CHEMWENO..................................................3RD DEFENDANT
JOHANA TELE...........................................................4TH DEFENDANT
LARI KIPTUM CHEUM............................................5TH DEFENDANT
SILA KIMUGE............................................................6TH DEFENDANT
TABITHA CHEUM......................................................7TH DEFENDANT
JIMMY SONYO..........................................................8TH DEFENDANT
RULING
This is the ruling in respect of an application dated 17th January 2018 brought by way ofNotice of Motion by the defendant/applicants for orders:
1. Spent
2. That this Honourable court be pleased to strike out the names of the 2nd to 8th defendants in this suit.
3. That the Honourable court be pleased to dismiss the suit against the 2nd to 8th defendants.
4. The costs be awarded to the defendants.
This matter came up for hearing of the defendant’s application on 14th March 2018 when Counsel for the 2nd to 8th defendants argued the application. Counsel for the 1st defendant also supported the application for the dismissal of the plaintiff’s suit.
It was Counsel’s submission that the names of the 2nd to 8th defendants should be stuck out of this suit and the that the plaintiff’s suit be dismissed as it does not disclose a cause of action against the defendants.
It was further Counsel’s submission that the plaintiff had filed a similar suit being Eldoret ELC Misc No. 2 of 2015 which was heard and dismissed. He stated that after the dismissal of the said application by the court the plaintiff filed another similar application which amounts to an abuse of the court process,
Counsel submitted that the plaintiff filed this suit in 2017 and has never taken any steps and has not filed any reply to this application even though he was served. Counsel urged the court to strike out the defendants’ names and dismiss the plaintiff’s suit altogether.
Counsel for the 1st defendant associated himself with the submissions of the 2nd to 8th defendants’ counsel and urged the court to allow the application as prayed as the plaintiff’s suit is an abuse of the court process.
Analysis and determination
This is an application for striking out of the names of the defendants and the suit as it does not disclose a cause of action against the defendants. The plaintiff filed this suit against the defendants in 2017.
It is evident for the pleadings of both parties that a similar suit had been filed being Eldoret E &L Misc. application No. 2 of 2015 which dealt with this matter and the same was dismissed. In fact the plaintiff had sought for leave to file a suit out of time which was declined. The plaintiff decided to file another suit after the refusal of the court to grant the leave. This is clearly an abuse of the court process.
The plaintiff was served with a hearing notice for the application but did not attend or file any reply to the application. The application is therefore not opposed. I have looked at the pleadings together with the documents in support of the application and the submissions of both counsel and I am of the view that this application has merit and the same is allowed as prayed.
Courts should be slow at striking out suits but should also guard against the abuse of court process. This is one such case where the abuse is glaring and the court cannot turn a blind eye to such abuse. The upshot is that the plaintiff’s case is dismissed with costs to the defendants.
Dated and delivered at Eldoret this 12th day of June, 2018.
M.A ODENY
JUDGE
Ruling read in open court in the presence of Mr. Omboto holding brief for Mr. Martim for 2nd to 7th defendants/Applicants and in the absence of the Plaintiff and the 1st defendant.