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ELCStruck OutNot stated in judgment (suit commenced 21 January 2013, Eldoret)· [2014] KEELC 119 (KLR)

Anna Cherop Chepsiror v Municipal Council of Eldoret & 2 others [2014] KEELC 119 (KLR)

Environment and Land Court
29 October 2014
MSMunyao Sila
749 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, registered as proprietor of Eldoret Municipality Block 8/586 on 21 March 2007 after purchasing it from Somog Limited, sued the Municipal Council of Eldoret and the District Land Registrar, Uasin Gishu, by plaint filed on 21 January 2013, seeking a permanent injunction and a declaration that the defendants' interference with her property was illegal. The court observed that the plaintiff had earlier filed Eldoret HCCC No. 7 of 2008 on 18 February 2008 against the Municipal Council over the same property, pleading the same purchase from Somog Limited and the same interference, and seeking a declaration of trespass, a permanent injunction and a mandatory order. An injunction application in that suit was dismissed on 21 April 2008 by Ibrahim J, who ordered the plaintiff to vacate and Council employees to be restored. The plaint there was later amended to add the Anti-Corruption Authority as 2nd defendant. In the present suit, the plaintiff did not disclose the 2008 suit. The Ethics and Anti-Corruption Authority was joined as interested party by consent, and a status quo consent was recorded in November 2013. On the court's own motion, the plaintiff was directed to show cause why the suit should not be dismissed as res judicata; she filed no affidavit and her counsel did not appear. All other counsel urged dismissal as an abuse of process. Holding that Section 6 barred a second suit over issues substantially in issue previously, that the plaintiff should have amended rather than filed afresh, and that the suit was intended to circumvent the order of 21 April 2008, the court struck out the suit with costs to the defendants and interested party and vacated all orders previously issued.

Key legal issues

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01

Res judicata / multiplicity of suits

Holding

The suit was barred because the same property and substantially the same claims and reliefs were pending in Eldoret HCCC No. 7 of 2008, which the plaintiff failed to disclose.

Reasoning

The plaintiff had filed Eldoret HCCC No. 7 of 2008 in 2008 against the Municipal Council of Eldoret over the same property, Eldoret Municipality Block 8/586, seeking a declaration of trespass, injunction and mandatory orders. Instead of amending that plaint to add the Land Registrar, she filed a fresh suit in 2013 without disclosing the earlier suit. The court invoked Section 6 and found the suit circumvented the order of 21 April 2008.

p. 2
02

Abuse of the process of the court

Holding

The suit was an abuse of process and had to be struck out with costs to the defendants and interested party.

Reasoning

All other counsel asked for dismissal as an abuse of process; counsel for the plaintiff filed no affidavit and did not appear for submissions. The court agreed, holding that whichever way it was viewed, the suit was an abuse of the court's process, and struck it out, vacating all orders previously issued in the suit.

p. 2

Legal principles established

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  • A party must disclose the existence of a previous suit over the same subject matter, and a court is barred from proceeding where the issues are substantially in issue in a previously filed suit
  • Filing a fresh suit to obtain the same reliefs, rather than amending the existing plaint to add a necessary party, is an abuse of the process of the court

Court orders

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  1. 1.Suit struck out with costs to the defendants and the interested party
  2. 2.All orders issued in the suit vacated

Authorities

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Legislation

  • Civil Procedure Act (referred to in judgment as Civil Procedure Rules)Section 6
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (suit by plaint); suit dismissed on ground of res judicata under Section 6 of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Anna Cherop Chepsiror v Municipal Council of Eldoret & 2 others [2014] KEELC 119 (KLR)", Case Analysis (2014). Not stated in judgment (suit commenced 21 January 2013, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/119/eng@2014-10-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.