https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3207

Dungarwalla (Substituted with Neelelam Dungagarwalla) v Uzima Press Limited & 2 others (Environment and Land Case 2315 of 2007) [2026] KEELC 3207 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELC 3207 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case 2315 of 2007 OA Angote, J May 28, 2026 Between Salim Hussein Dungarwalla (Substituted with Neelelam Dungagarwalla) Plaintiff and Uzima Press Limited 1st Defendant Right End Properties Limited 2nd Defendant The Registrar of Titles 3rd Defendant Ruling 1.Vide a Notice of Motion dated 6th March, 2026, brought pursuant to the provisions of Sections 1A, 1B and 3A of the Civil Procedure Act, and Order 8 Rule 3 & Order 51, Rules 1 of the Civil Procedure Rules, 2010, the 1st Defendant/Applicant seeks the following reliefs: that:i.The court be pleased to grant leave to the 1st Defendant to amend its Statement of Defence and Counterclaim dated 19th March, 2008 in the manner and style of the draft 1st Defendant's Statement of Defence and Counterclaim annexed hereto.ii.The said draft 1st Defendant's Statement of Defence and Counterclaim annexed hereto be deemed as duly filed and served subject to the payment of the requisite court filing fees.iii.The Court be pleased to make such further and/or other orders as the circumstances of the present case may call for.iv.The costs of this application be in the cause 2.The Motion is supported by the affidavit of Philip Kibuga, the Chief Executive Officer of the 1st Defendant, duly authorized by the 1st Defendant’s Board of Directors to swear the affidavit on its behalf. 3.He stated that the 1st Defendant is the registered proprietor of L.R. No. 1870/X/24 measuring approximately 0.2327 hectares; that by a sale agreement dated 25th June 2005, the 1st Defendant agreed to sell the suit property to the Plaintiff and that the Plaintiff breached the terms of the agreement and failed to complete the transaction, prompting the 1st Defendant to terminate the agreement and subsequently enter into a fresh sale agreement dated 15th June 2007 with Messrs.’ Ashraf Savani and Madatali Suburali Chatur, who are directors of the 2nd Defendant. 4.It was deposed by the 1st Defendant’s Director that under the said agreement, the completion date for the transaction was stipulated as being within sixty (60) days from the execution of the agreement on 15th June 2007, or within sixty (60) days from the successful registration of the transfer in favour of the purchaser, whichever was applicable, or such later date as the parties would agree upon in writing. 5.He deposed that in order to facilitate the transmission of the completion documents, the 2nd Defendant’s advocates issued a professional undertaking dated 12th September 2007. Thereafter, the 1st Defendant forwarded the completion documents to the 2nd Defendant’s advocates to enable the transfer to be concluded. 6.He pointed out that the undertaking expressly provided that if registration of the transfer was not effected within forty-five (45) days from the date the documents were forwarded, or if the advocates failed to comply with the terms of the undertaking, they would, upon demand, return the documents in the same condition in which they had been delivered. 7.According to the deponent, the transfer was never registered, partly due to a caveat lodged by the Plaintiff against the title and subsequently because of the orders issued by this court restraining any dealings with the suit property. 8.He averred that despite the failure to complete registration within the stipulated forty-five (45) days, the 2nd Defendant failed to comply with the terms of the professional undertaking by refusing or neglecting to return the completion documents forwarded by the 1st Defendant. He further deponed that the 2nd Defendant equally failed to pay the balance of the purchase price as agreed between the parties. 9.It is the 1st Defendant’s case that those subsequent commercial considerations, together with the changed circumstances surrounding the transaction, led it to rescind the contract with the 2nd Defendant and instead resolve to establish its own operational headquarters on the suit property, and that it did so vide the notice dated 27th November, 2014 which was served and acknowledged by the 2nd Defendant during the pendency of this suit. 10.According to Mr Kibuga, by a Notice of Motion dated 27th July 2014, the 1st Defendant sought leave to amend its statement of claim and counterclaim but the same was declined by the court in its ruling dated 1st April, 2016 on the ground that since the suit had been partly heard and the Plaintiff had already given his evidence, allowing the amendments would be prejudicial. 11.He explained that the present application has been precipitated by the judgments of the Court of Appeal delivered on 20th May 2025 in Civil Appeal Nos. E396 and E397 of 2020, and on 23rd May 2025 in Civil Appeal No. 54 of 2019, Salim Hussein Dungarwalla vs Uzima Press Ltd & 2 Others, wherein the appellate court directed that the matter be retried afresh on a priority basis. 12.In light of the changed circumstances, he urged, it has become necessary for the 1st Defendant to amend its defence and counterclaim dated 19th March 2008 in the manner set out in the draft annexed to the application. According to the deponent, the appellate decisions fundamentally altered the posture of the case and rendered the proposed amendments necessary in order to place before the court the real questions in controversy between the parties. 13.The intended amendments, he explained, arise from matters already pleaded in the proceedings and that all parties would have an opportunity to respond thereto before the commencement of the retrial. It was therefore his position that no prejudice would be occasioned to any party if leave to amend was granted. 14.The 2nd Defendant opposed the application through the replying affidavit of Madatali Suburali Chartur, a director of the 2nd Defendant duly authorized by his co-directors to swear the affidavit on its behalf. He deponed that the application is frivolous, vexatious, an afterthought, and one that ought not to be allowed by the court. 15.According to Mr. Chartur, the present application is res judicata as the 1st Defendant had previously filed a similar application dated 27th July 2014 seeking leave to amend its defence and counterclaim, which application was heard and dismissed on its merits by the court in a ruling delivered on 1st April 2016. The present application, he urged, is an attempt to reopen and relitigate issues already conclusively determined by the court. 16.Mr. Chatur deponed that the present application has been brought after inordinate and unreasonable delay, noting that the intended amendments sought to alter pleadings filed over eighteen years earlier and that the suit proceeded to conclusion, culminating in a judgment delivered on 4th July 2018, which subsequently gave rise to several appellate proceedings, including Civil Appeal No. 54 of 2019, wherein the Court of Appeal directed that the matter be heard afresh on a priority basis. 17.It was his position that, in light of the appellate court’s directions and the age of the matter, the suit ought to proceed expeditiously to hearing without further amendments or interlocutory applications that would occasion additional delay. 18.The deponent asserted that the proposed amendments will alter the character of the suit, reopen closed pleadings, necessitate a fresh pre-trial process, and prolong litigation in a matter that has already been in court for close to twenty years and that the amendments introduce entirely new causes of action and fresh reliefs which will fundamentally change the nature of the dispute, particularly given that the Plaintiff is now deceased and therefore unable to respond to the new allegations sought to be introduced. 19.Further, it was deposed that as the court had previously observed in dismissing the earlier application for amendment, allowing the amendments would occasion grave injustice to the Plaintiff since the deceased Plaintiff would not be in a position to counter the new claims. 20.He urged that the proposed amendments are scandalous, frivolous and vexatious and will prejudice, embarrass and delay the fair hearing and determination of the suit. He further contended that the 1st Defendant was acting in bad faith by filing the application only after the matter had been certified ready for hearing on 30th June 2026, with the intention of forestalling the hearing and causing further delay. 21.He also noted that despite previous court attendances on 24th February, 2026 and 10th March 2026, the 1st Defendant had neither filed nor intimated any intention of filing the application, and therefore urged the court to dismiss it in the interests of justice and pave way for the expeditious hearing of the suit. No submissions had been filed as at 21st May, 2026. Analysis and Determination 22.Having analyzed the pleadings, the issues that arise for determination are whether the 1st Defendant’s application for amendment is competent and if so merited? 23.Vide the present Motion, the 1st Defendant asks this court for leave to amend its defence and counterclaim. The 2nd Defendants asserts that this plea is not available to the 1st Defendant, the same being in breach of the doctrine of res judicata, a similar application having been filed and dismissed. 24.The substantive law on res judicata is found in Section 7 of the Civil Procedure Act, Cap 21 which provides that:“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.” 25.In the case of John Florence Maritime Services Limited & another vs Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment), the Supreme Court delved into an in-depth discussion of the concept of res judicata thus:“...The essence of the res judicata doctrine is further explicated by Wigram, V-C in Henderson v Henderson (1843) 67 ER 313, as follows:… where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a Judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time” [emphasis supplied].Hence, whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case¾to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others, (2010) eKLR, under five distinct heads: (i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v) finality of the previous decision.” 26.The court will be so guided. 27.Briefly, the present dispute concerns the sale and ownership of L.R. No. 1870/X/24 (“the suit property”). It is not in dispute that the Plaintiff entered into a sale agreement with the 1st Defendant for the purchase of the suit property, which agreement the 1st Defendant subsequently rescinded, entering into a new agreement with the 2nd Defendant. 28.Aggrieved by the rescission, the Plaintiff instituted the present suit seeking inter-alia declarations that the agreement dated 23rd June 2005 remained valid and binding, together with injunctive and transfer orders in respect of the suit property. 29.In response, the 1st Defendant maintained that the agreement had been lawfully rescinded on account of fraud, misrepresentation and the Plaintiff’s failure to complete the transaction. The 2nd Defendant conceded to have entered into an agreement with the 1st Defendant for the purchase of the suit property after the aforesaid recession. 30.Judgment in the matter was delivered on 4th July 2018. In that judgment, the court dismissed the Plaintiff’s claim and allowed prayers (a) and (b) of the 1st Defendant’s counterclaim. Thereafter, the Plaintiff lodged Civil Appeal No. 54 of 2019. In its judgment delivered on 23rd May 2025, the Court of Appeal revisited the judgment of 4th July 2018 and found that although the learned Judge had summarized the evidence placed before the court, the judgment did not sufficiently analyse that evidence before arriving at the conclusions reached. 31.The appellate court observed that the findings on the allegations of fraud and on whether the Plaintiff had failed to complete the agreement were arrived at in a rather peremptory manner and without the detailed reasoning expected of a trial court. Consequently, the Court of Appeal declined to determine the merits of the dispute at the appellate stage and instead invoked Section 78(1)(b) of the Civil Procedure Act to remit the matter to the Environment and Land Court for rehearing before a different judge. 32.A similar position was adopted in Civil Appeal No. E397 of 2020 instituted by the 2nd Defendant where, by consent of the parties, the Court of Appeal allowed the appeal, set aside the earlier determination and directed that the matter be remitted to the Environment and Land Court for hearing on a priority basis before another judge. 33.Prior to the judgment and consequent appeal, vide a Notice of Motion dated 27th July 2014, the 1st Defendant had sought leave to amend its defence and counterclaim. That application was heard and determined on its merits and was dismissed vide the ruling delivered on 1st April 2016. 34.The court declined the amendments principally on the basis that the matter was already part-heard, the Plaintiff had testified and subsequently passed away, and that the proposed amendments would substantially alter the defence and counterclaim in circumstances where the deceased Plaintiff would no longer be available to respond to or test the new allegations sought to be introduced. It is on the strength of that ruling that the 2nd Defendant maintains that the present application is res judicata. 35.There is no dispute that the parties, the subject matter, and the issue concerning amendment of the 1st Defendant’s defence and counterclaim are the same as those that fell for determination in the application dated 27th July 2014. Indeed, the doctrine of res judicata extends not only to issues that were expressly determined by the court, but also to matters which properly belonged to the subject of litigation and which, exercising reasonable diligence, the parties ought to have brought forward at the time. 36.The issue that therefore arises is whether the Court of Appeal’s order directing a retrial, coupled with what the 1st Defendant terms changed circumstances warrant a reconsideration of the issue of amendment of pleadings which had already been conclusively determined in the ruling delivered on 1st April 2016. 37.Beginning with the alleged changed circumstances, the court has considered the copy of the 2nd Defendant’s professional undertaking together with the correspondence exchanged between the advocates for the 1st Defendant and the 2nd Defendant regarding the purported rescission and termination of the agreement dated 15th June 2007. 38.The court is unable to discern any new circumstance arising therefrom so as to warrant a departure from the earlier ruling delivered on 1st April 2016. The professional undertaking relied upon is itself a document generated in the year 2007 and therefore formed part of the factual matrix that existed long before the earlier application for amendment was heard and determined. 39.Equally, the notices and correspondence relied upon are merely communications exchanged between counsel for the parties during the pendency of the dispute and do not disclose any supervening fact or development arising after the determination of the earlier application 40.A retrial or rehearing ordered by an appellate court does not, without more, operate as a wholesale nullification of every interlocutory determination previously made in the proceedings. Rather, the effect of such an order must be discerned from the terms and scope of the appellate decision itself. 41.In the present case, the Court of Appeal was concerned with the adequacy of the trial court’s analysis and reasoning in the judgment delivered on 4th July 2018. The appellate court did not pronounce itself on the ruling of 1st April 2016 declining leave to amend, nor did it set aside or otherwise disturb that determination. 42.The concern of the appellate court was that the evidence tendered before the trial court had not been sufficiently analysed before judgment was rendered. It is for that reason that the matter was remitted for rehearing so that the evidence could be properly evaluated and a fresh determination rendered on the substantive dispute. This distinction is important. A retrial is not synonymous with the commencement of an entirely fresh suit divorced from all prior procedural determinations. 43.The issue of whether the 1st Defendant ought to be allowed to amend its defence and counterclaim had already been directly canvassed before the court in the application dated 27th July 2014. The court considered the nature of the intended amendments, the stage the proceedings had reached, the fact that the Plaintiff had testified and subsequently passed away, and the prejudice likely to arise if the amendments were introduced. Upon considering those factors, the court rendered a final determination declining leave. 44.The 1st Defendant cannot now seek to have another bite at the cherry as regards amendments by anchoring the same on the Court of Appeal decision ordering a retrial. Indeed, considering that when the Court of Appeal rendered its decision it did not consider the issues raised in the proposed amendments while ordering for a re-trial, the proposed amendments will be contrary to the reasons that were given by the Court of Appeal while making its orders. 45.The re-trial, as directed by the Court of Appeal, must be limited to the pleadings that were existing as at that time, and nothing more. 46.In the circumstances, the court is satisfied that the present application offends the doctrine of res judicata, and contrary to the order of the Court of Appeal, and cannot be sustained, Accordingly, the Notice of Motion dated 6th March 2026 is devoid of merit and is hereby dismissed with costs to the 2nd Defendant. DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 28TH DAY OF MAY, 2026.O. A. ANGOTEJUDGEIn the presence of;N/A for the PlaintiffMr. Masika for the 1st DefendantMr. Kipkoech for Mr. Mulanya for the 2nd DefendantCourt Assistant: Tracy