[2023] KEELC 17120 (KLR)
The court held that the plaintiffs, having withdrawn the suit and with costs awarded to the defendant, could not lawfully revive the suit or file further pleadings in respect of it. The attempt to separate consolidated suits and revive the withdrawn suit was found to be an abuse of court process and contrary to the...
Source-derived case information.
- Citation
- [2023] KEELC 17120 (KLR)
- Parties
- Plaintiff: Veronicah Nashipae Monirei; Plaintiff: Joyce Karato Monirei; Defendant: Redrock Investments Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Case Civil Suit 43 of 2019
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; suit found not to exist; costs to defendant
- Judges
- MN Gicheru
- Legal Topics
- Withdrawal of Suit, Consolidation of Suits, Abuse of Court Process, Estoppel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Veronicah Nashipae Monirei
Plaintiff
Joyce Karato Monirei
Plaintiff
Redrock Investments Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit exists after being withdrawn by the plaintiffs and costs awarded to the defendant.
- 2 Whether consolidated suits can be separated after withdrawal and dismissal of one suit.
- 3 Whether the plaintiffs' attempt to revive the withdrawn suit constitutes abuse of court process.
Ratio Decidendi
The court held that the plaintiffs, having withdrawn the suit and with costs awarded to the defendant, could not lawfully revive the suit or file further pleadings in respect of it. The attempt to separate consolidated suits and revive the withdrawn suit was found to be an abuse of court process and contrary to the doctrine of estoppel as codified in Section 120 of the Evidence Act. The court upheld the preliminary objection, finding that the suit does not exist and that any pleadings filed by the plaintiffs after dismissal are of no legal effect. Costs were awarded to the defendant.
Court Disposition
preliminary objection upheld; suit found not to exist; costs to defendant
Orders
- The preliminary objection dated 4/4/2022 is upheld.
- The suit is declared not to exist.
Full Case Text
Judgment text and source record
20 paragraphs
Monirei & another v Redrock Investments Limited (Environment and Land Case Civil Suit 43 of 2019) [2023] KEELC 17120 (KLR) (3 May 2023) (Ruling)
Neutral citation: [2023] KEELC 17120 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment and Land Case Civil Suit 43 of 2019
MN Gicheru, J
May 3, 2023
Between
Veronicah Nashipae Monirei
1st Plaintiff
Joyce Karato Monirei
2nd Plaintiff
and
Redrock Investments Limited
Defendant
Ruling
1. This ruling is on the Notice of Preliminary Objection dated 4th April, 2023. In brief the preliminary objection is to the effect this suit does not exist having been withdrawn by the Plaintiffs and costs awarded to the Defendant on 10/3/2022.
2. Counsel for the parties have filed written submissions dated 28th October 2022 and 11th November, 2022 respectively. The issue at the heart of the dispute is simply whether the two suits having been consolidated can now be separated.
3. I have carefully considered the submissions by the learned counsel for the parties as well as the law cited therein and I find that the two suits cannot be separated at this stage.Section 120 of the Evidence Act provides as follows-When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative to deny the truth of that thing”.The prayers sought vide paragraph 12 of the plaint dated 4/4/2013 are similar to the ones sought at paragraph 11 of the cross action dated 28/3/2022. This is abuse of court process as it goes against the general estoppel rule. The Plaintiffs cannot lawfully bring back the suit to life after they withdrew it.For the above stated reasons, I uphold the preliminary objection dated 4/4/2022 and find that this suit does not exist and the pleadings filed by the Plaintiffs after the dismissal of the case have no effect. Costs to the Defendant.It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 3RD DAY OF MAY, 2023. M.N. GICHERUJUDGE