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ELCPartially AllowedCivil Suit ( plaint filed 16th March 2015) - Applications dated 21st January 2016 and 10th February 2016· [2016] KEELC 163 (KLR)

Zablon Kimindu Mutonyi v Joseph Muchiri Kiburi & another [2016] KEELC 163 (KLR)

Environment and Land Court
11 November 2016
BOB.N. OLAO
957 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court paused a duplicate lawsuit over the same land, telling both sides to fight it out in the earlier Kerugoya case.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court (Olao J) determined two applications arising from a land dispute concerning parcels KABARE/KIRITINE/2621 and 2622, deriving from land parcel KABARE/KIRITINE/1985. The defendants sought dismissal or striking out of the plaintiff's suit filed on 16th March 2015, contending that the same issues were pending before the Kerugoya Chief Magistrate's Court in Civil Case No. 300 of 2013. The plaintiff sought a temporary injunction restraining the defendants from alienating, selling or interfering with the parcels, and cancellation of transfers of the parcels to Njoka Ngethi and Stephen Mbogo Muthoni. The court found that the parties were litigating over the same land parcel in the Kerugoya suit, which remained pending and included a certificate of sale declaring the plaintiff the highest bidder at Ksh. 750,000. Applying Section 6 of the Civil Procedure Act, the court held the suit was caught by the stay-of-suit provision but that striking out is a draconian order to be applied cautiously and only in the clearest of cases; the proper remedy was a stay. The plaintiff's application could not be considered on its merits given the stay; even on its merits it would fail because the registered owners of the parcels, though named as interested parties, were never joined and were strangers to the suit; the injunction was badly drafted as pending the application rather than the main suit; and cancellation of transfers was final relief unattainable interlocutorily. The suit was stayed, with parties advised to pursue their claims in the Kerugoya suit, and each party to bear their own costs of the two applications.

Key legal issues

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01

Whether the suit should be struck out or dismissed for being sub judice

Holding

The suit is caught by Section 6 of the Civil Procedure Act given the pendency of Kerugoya CMCC No. 300 of 2013 involving the same parties and subject matter, but the proper remedy is a stay, not striking out or dismissal

Reasoning

The court found that the same land parcel, KABARE/KIRITINE/1985, is the subject of pending litigation between the same parties in Kerugoya CMCC No. 300 of 2013, including a certificate of sale declaring the plaintiff the highest bidder. Section 6 of the Civil Procedure Act bars trial of a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties. Because striking out is draconian and to be applied cautiously, the court opted for a stay.

p. 2
02

Whether the plaintiff's application for a temporary injunction and cancellation of transfers could be granted

Holding

The application could not be considered on the merits because the suit is stayed; even on its own merits it would fail because the registered owners of the suit parcels are strangers to the suit, the injunction sought is pending the application rather than the main suit, and cancellation of transfers is final relief not available interlocutorily

Reasoning

The court noted that parcels KABARE/KIRITINE/2621 and 2622 are registered in the names of Njoka Ngethi and Stephen Mbogo Muthoni, who despite being named as interested parties in the application were never formally joined to the suit, making them strangers whose interests cannot be prejudiced without joinder. The application was also badly drafted in seeking an injunction only pending the hearing of the application itself, and sought final relief (cancellation of transfers) improper on an interlocutory motion.

p. 2

Legal principles established

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  • Where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties, Section 6 of the Civil Procedure Act requires the Court to stay the later suit rather than strike it out
  • Striking out a pleading is a draconian remedy to be applied cautiously and only in the clearest of cases
  • A court cannot make an order prejudicial to the interests of a person who is a stranger to the suit without joining them as a party
  • Final relief such as cancellation of a transfer cannot be granted on an interlocutory application

Court orders

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  1. 1.This suit is stayed
  2. 2.The parties are advised to pursue their respective claims in Kerugoya Chief Magistrate's Court Civil Case No. 300 of 2013
  3. 3.Each party to meet their own costs of the two applications

Authorities

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Legislation

  • Civil Procedure ActSection 6
Jurisdiction invoked
Section 6 of the Civil Procedure Act (stay of suit) - Environment and Land Court jurisdiction over the plaint filed on 16th March 2015

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Zablon Kimindu Mutonyi v Joseph Muchiri Kiburi & another [2016] KEELC 163 (KLR)", Case Analysis (2016). Civil Suit ( plaint filed 16th March 2015) - Applications dated 21st January 2016 and 10th February 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/163/eng@2016-11-11

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