[2022] KEELC 1437 (KLR)
The court found that although there was a previous suit involving the same parties and subject matter, the applicant credibly asserted he was unaware of that suit, was not properly served, and did not instruct the law firm that purported to represent him. The previous suit was dismissed for want of prosecution and...
Source-derived case information.
- Citation
- [2022] KEELC 1437 (KLR)
- Parties
- Applicant: Jumaa Takidiri Mwachihi; Respondent: Omar Wadh Madhesh; Respondent: Abdalla Basawadh
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E199 of 2020
- Procedural Posture
- Originating Summons / Ruling on Preliminary Objection/abuse of Process
- Outcome
- Application to dismiss suit for abuse of process is dismissed; applicant allowed to proceed with suit.
- Legal Topics
- Adverse Possession, Abuse of Process, Substituted Service, Dismissal for Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jumaa Takidiri Mwachihi
Applicant
Omar Wadh Madhesh
Respondent
Abdalla Basawadh
Respondent
Procedural Posture
Originating Summons / Ruling on Preliminary Objection/abuse of Process
Legal Issues
- 1 Whether the applicant's suit is an abuse of the court process given the existence of a previous suit over the same land.
- 2 Whether the applicant was properly served and represented in the previous suit before the Magistrate's Court.
- 3 Whether the applicant should be allowed to proceed with the current suit for adverse possession.
Ratio Decidendi
The court found that although there was a previous suit involving the same parties and subject matter, the applicant credibly asserted he was unaware of that suit, was not properly served, and did not instruct the law firm that purported to represent him. The previous suit was dismissed for want of prosecution and thus no longer exists. The court was unable to conclusively verify the applicant's assertions but, in the circumstances, gave him the benefit of the doubt. The court held that the current suit is not an abuse of the court process and allowed the applicant to proceed to a hearing on the merits of his claim for adverse possession.
Court Disposition
Application to dismiss suit for abuse of process is dismissed; applicant allowed to proceed with suit.
Orders
- The applicant is allowed to proceed with the suit to its logical conclusion.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
ELC CASE NO. E199 OF 2020
JUMAA TAKIDIRI MWACHIHI ….……………………….……. APPLICANT
-VERSUS-
OMAR WADH MADHESH ……………………….…….... 1ST RESPONDENT
ABDALLA BASAWADH ………………….…………….. 2ND RESPONDENT
RULING
1. The suit before me was instituted by way of Originating Summons filed on 3 November 2020. The applicant’s case is that he is entitled to be declared the proprietor of Plot No. 50/11/MN by virtue of adverse possession. On 16 February 2021, the applicant filed an application seeking leave to serve the respondents through an advertisement in the daily newspapers. This application was based on the ground that his attempts to physically serve the respondents was unsuccessful because they could not be traced.
2. On 3 May 2021, Awadh Omar Awadh and two others entered appearance as the administrators for the estate of the 1st respondent. On 21 May 2021, Abdallah Salim Abdalla Basawad and another entered appearance as the administrators of the estate of the 2nd respondent. They both filed their responses to the Originating Summons.
3. In their replying affidavits they deposed that the applicant was well aware of the death of the respondents and the subsequent appointment of the administrators to their estates. In the Replying Affidavit of Swaleh Mohamed Omar, an administrator of the estate of the 1st respondent, it was deposed that there is a suit between the same parties being Mombasa Chief Magistrate Case No. 938 of 2012, Mohamed Omar Awadh & Barka Omar Awadh as administrator of the estate of Omar Awadh Madhesh vs. Juma Takdiri, Soud Abdalla and Timi Ali. It will be observed that Juma Takdiri is the 1st defendant in that case and is the plaintiff in this Originating Summons.
4. When the matter was mentioned before me on 4 October 2021, I thought it curious that the plaintiff would wish to apply to serve by substituted means yet he is a defendant in the case before the Magistrate’s Court and has entered appearance and filed defence. He would certainly be aware of the whereabouts of the persons who had sued him before the Magistrate and would not need to use substituted means. I also wondered why the plaintiff filed a fresh case when he already has a pending dispute before the Magistrate over the same land. He also had not disclosed this previous suit despite being a defendant in it. I thus asked the plaintiff to show cause why his case should not be dismissed for being an abuse of the court process.
5. The applicant has sworn an affidavit to reply to the notice. He has deposed that he is 94 years old and has been in possession and occupation of the suit land since 1954. He added that his occupation has been peaceful and uninterrupted, and he has never been asked to move out. He deposed that he has no recollection of being served for the case before the Magistrate’s Court and is unaware of the said case. He deposed that he never instructed any advocate to appear for him in that matter. He deposed that the advocate purporting to appear for him in the case at the Magistrate’s Court, that is M/s Mwahunga Mtana & Company Advocates, was never instructed by him. He deposed that the law firm could not represent him as Mr. Mwahunga was suspended from practice years ago and the firm ceased operations. He annexed a screen shot from the website of the Law Society of Kenya (LSK). He deposed that he has been informed that the said case was dismissed. He thus asserts that this suit is not an abuse of the process of court.
6. I have considered the depositions of the applicant. I have also perused the file Mombasa CMCC No. 938 of 2012. The plaintiffs in that case sued the applicant in this Originating Summons for eviction. There is actually filed a defence on behalf of the applicant (sued as 1st defendant) by the law firm of M/s Mwahunga Mtana & Company Advocates. There is also filed some documents to be relied upon at trial and a witness statement said to be of the applicant. The matter however never proceeded and was dismissed for want of prosecution on 19 November 2018.
7. In his explanation, the applicant states that he was not aware of this suit and never instructed the law firm of M/s Mwahunga Mtana & Company Advocates. He states that he also never signed the witness statement.
8. It is difficult for me to verify the correctness of the depositions of the applicant. I will give him benefit of doubt especially given that the suit no longer exists as it was dismissed for failure to prosecute.
9. I will allow the applicant to continue with this suit to its logical conclusion.
10. Orders accordingly.
DATED AND DELIVERED THIS 9TH DAY OF FEBRUARY 2022
JUSTICE MUNYAO SILA
JUDGE, ENVIRONMENT AND LAND COURT
AT MOMBASA