Background
1. The Plaintiff, Parkash Juttla, instituted this suit against the Defendants seeking, among other reliefs, a permanent injunction restraining the 1st Defendant from selling, alienating, advertising for sale, leasing, transferring, charging, or otherwise interfering with Land Reference No. 1/392 (Original No. 1/385/2) (hereinafter “the suit property”).
2. The dispute arose following several attempts by the 1st Defendant (CFC Stanbic Bank Ltd.) to exercise its statutory power of sale over the suit property on account of a charge registered in its favor. The Plaintiff contended that the process leading to the intended sale was irregular, unlawful, and in violation of her rights.
3. On 10th April 2019, this Court issued a ruling determining that the Plaintiff’s only legal interest in the suit property was that of an occupant entitled to a 40-day notice under Section 96(2) of the Land Act before the 1st Defendant could proceed with the sale. The Court further ruled that service of the statutory notice upon the firm of H. Kago & Company Advocates would be deemed sufficient.
4. In compliance with the Court’s orders, the 1st Defendant served upon the Plaintiff the 40 days’ notice on 5th August 2019, and subsequently sold the suit property at a public auction on 5th July 2022. The Plaintiff was notified of the sale through a letter dated 2nd August 2022.
5. Despite the sale of the suit property, the Plaintiff did not withdraw the suit, prompting the 1st Defendant to file an application dated 18th March 2024, seeking to strike out the suit on the grounds that the substratum of the case had been extinguished.
6. In response, the Plaintiff, through a Replying Affidavit sworn on 13th May 2024, opposed the application, arguing that the sale process remains questionable, particularly due to the lack of supporting evidence regarding the auction process. The Plaintiff also asserted that the issue of damages for wrongful conduct remains unresolved, and therefore the suit should proceed to full hearing.
7. On 23rd October 2024, the 1st Defendant filed its written submissions in support of the application, contending that the suit is moot, frivolous, and an abuse of the court process. The Plaintiff filed her written submissions on 5th November 2024, reiterating that there were substantive issues pending determination, including whether the sale was conducted lawfully and whether damages should be awarded.
8. The matter is now before this Court for determination on whether the Plaintiff’s suit should be struck out as being moot and an abuse of the court process or whether the issues raised warrant a full hearing on their merits.
Defendant/Applicant’s Submissions
9. The Defendant/Applicant submits that the Plaintiff’s suit should be struck out as it has been overtaken by events, rendering it moot and an abuse of the court process. They argue that the primary relief sought by the Plaintiff was an injunction to prevent the sale of the suit property, yet the property was lawfully sold through a public auction on 5th July 2022 after all necessary statutory notices were duly served. The Defendant/Applicant contends that since the sale has already taken place, there is no existing dispute for the Court to determine, and allowing the suit to proceed would serve no legal purpose.
10. The Defendant/Applicant asserts that under Order 2 Rule 15(1) of the Civil Procedure Rules, 2010, a suit may be struck out where it discloses no reasonable cause of action, is frivolous or vexatious, or amounts to an abuse of the court process. They rely on Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR, where the Court held that an abuse of the court process occurs when a suit serves no legitimate legal purpose and is used in a manner that is oppressive or amounts to unnecessary litigation. The Defendant/Applicant argues that the Plaintiff’s continued prosecution of this suit, despite the fact that the subject matter has already been disposed of, constitutes a misuse of judicial time and resources.
11. The 1st Defendant submits that it had a lawful right to exercise its statutory power of sale as chargee, a right that had been affirmed by two separate court orders in Milimani HCCC 409 of 2016 and Nairobi ELC No. 340 of 2017. The Defendant/Applicant argues that the Plaintiff was duly served with the requisite notices, as per the ruling of this Court on 10th April 2019, which held that her only entitlement was to a 40-day notice under Section 96(2) of the Land Act. The Defendant/Applicant contends that since the statutory requirements were complied with, the Plaintiff has no valid grounds to challenge the sale or maintain this suit.
12. The Defendant/Applicant argues that the Plaintiff’s claim that the sale process was questionable lacks merit and does not warrant a full hearing. They rely on Trust Bank Limited v H.S. Amin & Company Ltd & Another [2000] eKLR, where the Court held that a suit is frivolous and vexatious if it lacks substance, is groundless, and causes the opposing party unnecessary anxiety and expense. The Defendant/Applicant submits that the Plaintiff’s allegations regarding the absence of an auctioneer’s report, memorandum of sale, or certificate of sale are speculative and do not form a proper basis to sustain a suit that has otherwise lost its purpose.
13. The Defendant/Applicant further submits that allowing this suit to proceed would unjustly prejudice them, as they would be forced to continue expending resources to defend a claim that is no longer legally viable. They assert that the Plaintiff’s actions amount to an attempt to re-litigate issues that have already been determined by the Court and settled through the sale of the suit property. They rely on Madison Insurance Company Limited v Augustine Kamanda Gitau [2020] eKLR, where the Court emphasized that courts should not permit vexatious litigation that serves no legal purpose other than to frustrate the opposing party.
14. The Defendant/Applicant maintains that striking out the suit is the only just and appropriate remedy in the circumstances. They argue that the Court has an obligation to uphold the integrity of its processes by ensuring that judicial resources are not wasted on matters that have already been resolved. The Defendant/Applicant urges this Honourable Court to strike out the suit in its entirety, with costs, as it is frivolous, vexatious, and an abuse of the court process.
15. In conclusion, the Defendant/Applicant prays that this Honourable Court finds that the Plaintiff’s suit has been overtaken by events, has no reasonable cause of action, and should be struck out with costs to the Defendant/Applicant.
Plaintiff/Respondent’s Submissions
16. In response, the Plaintiff/Respondent submitted that the 1st Defendant’s application to strike out the suit is premature, unfounded, and aimed at defeating the course of justice. The Plaintiff argues that the suit raises substantive legal and factual issues that warrant a full hearing rather than being summarily dismissed. The Plaintiff contends that the doctrine of mootness does not apply, as the reliefs sought include general damages for unlawful and wrongful advertisement, intimated sale, and/or repossession of the suit property, which remain live and justiciable.
17. The Plaintiff/Respondent asserts that the 1st Defendant’s actions in disposing of the suit property were procedurally flawed and in breach of legal safeguards. The Plaintiff disputes the legitimacy of the sale process, particularly the mode of disposal, arguing that prior discussions between the parties indicated that the property would be sold by private treaty and not by public auction. The Plaintiff contends that the 1st Defendant’s unilateral departure from this agreement raises serious legal questions, which should be determined at trial rather than being dismissed on a preliminary application.
18. The Plaintiff/Respondent further submits that the Defendant’s application fails to account for key procedural lapses in the sale of the property. The Plaintiff challenges the 1st Defendant’s assertion that a lawful auction took place, noting that the Defendant has failed to provide essential documentation, including the auctioneer’s report, memorandum of sale, and certificate of sale. The Plaintiff argues that without these documents, it is impossible to verify whether a valid public auction occurred, and striking out the suit without such verification would be grossly unjust.
19. The Plaintiff/Respondent relies on Judicial Review No. 441 of 2018; Daniel Kaminja & 3 Others (Suing as Westland Environmental Caretaker) v County Government of Nairobi, where the Court elaborated on the doctrine of mootness, stating that a matter is not moot as long as there exists an unresolved injury for which relief can still be granted. The Plaintiff argues that the presence of a collateral issue, such as a claim for damages, is an exception to mootness, and thus, the case should proceed to full hearing.
20. The Plaintiff/Respondent submits that the Defendant’s attempt to strike out the suit based on the sale of the suit property disregards the broader reliefs sought. The Plaintiff maintains that even if the primary relief for injunctive orders may no longer be viable, the claim for damages arising from the unlawful and wrongful acts of the 1st Defendant remains valid. The Plaintiff relies on Constitutional Petition No. 4 of 2023; Sahal Mugow Mohamud & 5 Others v Equalization Fund Advisory Board & 4 Others, where the Court reiterated that a claim is not rendered moot merely because one aspect has been overtaken by events if a plaintiff can still obtain meaningful relief, the case should proceed.
21. The Plaintiff/Respondent further contends that the 1st Defendant’s application to strike out the suit is a tactical move to evade judicial scrutiny over its questionable conduct. The Plaintiff notes that the Defendant’s letter dated 5th July 2022, purporting to notify the Plaintiff of the sale, lacks any proof of service and does not provide essential details such as the location of the auction, the identity of the auctioneer, or any supporting documents confirming the transaction. The Plaintiff asserts that such inconsistencies demonstrate the need for a full hearing to establish the legitimacy of the alleged sale.
22. The Plaintiff/Respondent urges the Court to be guided by Tom Odhiambo Achillah t/a Achillah T.O & Co. Advocates v Kenneth Wabwire Akide t/a Akide & Company Advocates & 3 Others [2015] eKLR, where the Court held that summary determinations are draconian and should only be applied in clear and obvious cases where the suit is entirely devoid of merit. The Plaintiff argues that this is not such a case, as the issues raised require evidentiary analysis before any determination can be made.
23. The Plaintiff/Respondent submits that dismissing the suit at this stage would not only cause irreparable prejudice but also violate her constitutional right to a fair hearing under Article 50(1) of the Constitution of Kenya, 2010. The Plaintiff contends that the Defendant’s reliance on procedural technicalities to terminate the case is contrary to Article 159(2)(d) of the Constitution, which directs courts to administer justice without undue regard to procedural technicalities.
24. In conclusion, the Plaintiff/Respondent prays that this Honourable Court dismisses the 1st Defendant’s application to strike out the suit, as the matter raises serious triable issues concerning the legality of the sale process, breach of statutory safeguards, and entitlement to damages. The Plaintiff submits that justice demands that the suit proceeds to a full hearing, where the substantive issues can be properly determined on their merits.
Analysis and Determination
25. Having carefully considered the pleadings, the submissions of the parties, the evidence on record, and the applicable law, I note that the sole question for determination is whether the Plaintiff’s suit should be struck out as being moot and an abuse of the court process.
26. The Defendant/Applicant argues that the substratum of the suit has been extinguished following the lawful sale of the suit property on 5th July 2022, thereby rendering the suit moot, frivolous, and an abuse of the court process. The Plaintiff/Respondent, on the other hand, contends that substantive issues regarding the sale process remain unresolved, including whether the auction was properly conducted and whether she is entitled to damages for wrongful conduct by the Defendant.
27. The Court is guided by Order 2 Rule 15(1) of the Civil Procedure Rules, 2010, which empowers a court to strike out a suit where it discloses no reasonable cause of action, is scandalous, frivolous, or vexatious, or amounts to an abuse of the court process.
28. The Court of Appeal in Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR set out circumstances that amount to an abuse of the court process, stating:
“The concept of abuse of judicial process is imprecise, it implies circumstances and situations of infinite variety and conditions. Its one feature is the improper use of the judicial powers by a party in litigation to interfere with the administration of justice…”
29. The Supreme Court of Kenya in Institute for Social Accountability & another v National Assembly & 3 others & 5 others (Petition 1 of 2018) [2022] KESC 39 (KLR) (8 August 2022) (Judgment) explained the doctrine of mootness, stating:-
‘’ The common thread from the above decisions is that a matter is moot when it has no practical significance or when the decision will not have the effect of resolving the controversy affecting the rights of the parties before it. If a decision of a court will have no such practical effect on the rights of the parties, a court will decline to decide on the case. Accordingly, there has to be a live controversy between the parties at all stages of the case when a court is rendering its decision. If after the commencement of the proceedings, events occur changing the facts or the law which deprive the parties of the pursued outcome or relief then, the matter becomes moot.”
30. Courts exist to resolve real disputes and not to engage in academic discourse. Where a dispute has been resolved or the relief sought can no longer be granted, a court should not expend its time and resources on a matter that has lost its legal significance. This principle is encapsulated in the doctrine of mootness, which holds that if a matter no longer presents an existing or live controversy, judicial determination serves no practical purpose.
31. A perusal of the Plaint dated 23rd March 2018 reveals that the main relief was to restrain the sale of the suit property, which has already taken place. From the Plaint, it is evident that the Plaintiff’s claim for damages was intrinsically related to the alleged unlawful sale of the property. However, on the evidence on record, particularly the Ruling of the Court dated 10th April 2019 where the court held that the only interest the Plaintiff had on the property was that of an occupant entitled to a 40–day notice, it is the view of this court that with the sale of subject property, the plaintiff’s claim for damages became moot.
32. The Court is persuaded that allowing the suit to proceed would amount to an abuse of the court process, as it would compel the Defendants to defend a claim that no longer has any legal foundation.
33. For the foregoing reasons, the Court finds that the Plaintiff’s suit is moot as the substratum is already lost.
34. The suit is accordingly struck out in its entirety with costs to the Defendant/Applicant.
35. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT
THIS 20TH DAY OF MARCH 2025
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant