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ELCDismissedKisumu ELC (case number not stated in judgment)· [2016] KEELC 532 (KLR)

Grace Ayugi Mahulo (also suing as the administrator of the estate of the late Marcelina Amolo Mahulo) v Samuel Okello & 4 others [2016] KEELC 532 (KLR)

Environment and Land Court
14 September 2016
SKS.M. Kibunja
551 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to pause a land case because the earlier related case had already been withdrawn, so it no longer counted as pending.

What this practically means

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Executive summary

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The 1st and 3rd Defendants, Samuel Okello and Lameck Akodi, moved the court by notice of motion dated 17th August 2015 seeking a stay of the present suit against them until costs in Kisumu ELC No. 58 of 2012 (Grace Ayugi Mahulo & Another v Samuel Okello & 4 others) were paid, or alternatively that the 2nd Plaintiff's suit against them be struck out, with costs. The application was supported by the affidavit of Robert Ouma Njoga advocate and a further affidavit, and opposed by grounds of opposition and affidavit evidence, with written submissions filed by both sides. The court framed two issues: whether the Defendants had established a case for stay orders, and who should bear costs. Examining the notice of withdrawal of the Kisumu suit dated 25th August 2014 and the plaint of 25th September 2012, the court found the Defendants were in the same positions in both suits, that the Plaintiff here was the 1st Plaintiff there and also administratrix of the 2nd Plaintiff's estate. From the grant of letters of administration issued on 30th May 2014 in Kisumu H.C. Succession Cause No. 217 of 2013, the deceased Masela Amolo Odwuor died on 27th August 2010, before the Kisumu suit was filed. Since Kisumu ELC No. 58 of 2012 had been withdrawn, it was not pending for purposes of Section 6 of the Civil Procedure Act. The court held the motion had no merit and dismissed it with costs to the Plaintiff.

Key legal issues

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Whether a stay of proceedings under Section 6 of the Civil Procedure Act was warranted

Holding

No stay was warranted because the purported parallel suit, Kisumu ELC No. 58 of 2012, had been withdrawn and was not pending.

Reasoning

The court examined the notice of withdrawal dated 25th August 2014 and the plaint in Kisumu ELC No. 58 of 2012, noting the same parties occupied the same positions. It also observed from the grant of letters of administration that Masela Amolo Odwuor died on 27th August 2010, before that suit was filed, casting doubt on its validity. Since the earlier suit had been withdrawn, it was not pending under Section 6, so the foundation for the stay application failed and the motion was dismissed with costs.

p. 2

Legal principles established

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  • A suit that has been withdrawn cannot be said to be pending for purposes of Section 6 of the Civil Procedure Act, so no stay on the ground of a pending suit can issue.

Court orders

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  1. 1.The notice of motion dated 17th August 2015 is dismissed with costs to the Plaintiff

Authorities

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Legislation

  • Civil Procedure ActSection 6
Jurisdiction invoked
Civil Procedure Act Chapter 21, Section 6 (res sub judice) invoked in opposition to stay

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, "Grace Ayugi Mahulo (also suing as the administrator of the estate of the late Marcelina Amolo Mahulo) v Samuel Okello & 4 others [2016] KEELC 532 (KLR)", Case Analysis (2016). Kisumu ELC (case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/532/eng@2016-09-14

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