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ELCOtherNakuru ELC No. 319 of 2015· [2016] KEELC 649 (KLR)

Anthony Ntutu v Saiyalel Ololoso [2016] KEELC 649 (KLR)

Environment and Land Court
13 July 2016
MSMunyao Sila
1,324 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, Anthony Ntutu, sued the defendant, Saiyalel Ololoso, in the Environment and Land Court at Nakuru (ELC No. 319 of 2015) claiming ownership of land parcel Cis-Mara/Lemek/3217 and alleging trespass, seeking a permanent injunction, damages and costs. He simultaneously sought ex-parte injunction orders, but the application was directed to be served for inter partes hearing. When the matter came up, the defendant's counsel revealed that six days after filing the ELC suit, the plaintiff had filed an identical suit, Narok CMCC No. 250 of 2015, in the Chief Magistrate's Court at Narok, where a similar injunction application succeeded. The court stayed the Narok proceedings. The plaintiff then withdrew the ELC suit, pleading that the Narok matter should proceed in the interests of substantive justice; his counsel in the Narok suit said he had been unaware of the ELC filing. Comparing the pleadings, the court found the Narok plaint identical word for comma to the ELC plaint, drawn by a different firm of advocates. It concluded the plaintiff, having failed to obtain interim orders in the ELC, forum-shopped to the Magistrate's Court - a classical abuse of court process. Exercising its supervisory jurisdiction, the court declared the Narok suit an abuse of process, struck it out with costs, declared its proceedings a nullity, and quashed all orders issued therein. The ELC suit was declared withdrawn with costs to the defendant, and the plaintiff was ordered to pay the costs of both suits before filing any fresh suit.

Key legal issues

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01

Whether filing an identical suit in the Magistrate's Court after failing to obtain interim relief in the ELC was abuse of process

Holding

Yes; the Narok suit, whose plaint mirrored the ELC plaint word for word, was filed solely to obtain interim orders that had been refused, and was struck out as an abuse of process

Reasoning

The court compared the two plaints and found them identical word for comma, drawn by two different firms of advocates, which it found implausible. It concluded the plaintiff, having failed to get ex-parte injunction orders in the ELC, forum-shopped to the Magistrate's Court. Exercising its supervisory jurisdiction, the court held the fittest remedy was to declare the Narok case an abuse and strike it out, nullifying its proceedings and quashing all orders issued there, to protect the integrity of the judicial process.

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Legal principles established

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  • Filing a substantially identical suit in a subordinate court after failing to obtain interim orders in the higher court is an abuse of the process of court warranting striking out
  • The integrity and sanctity of the court process must be safeguarded against forum shopping

Court orders

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  1. 1.Narok CMCC No. 250 of 2015 declared to have been filed in abuse of the court process and struck out with costs
  2. 2.The proceedings in Narok CMCC No. 250 of 2015 declared a nullity and all orders issued therein quashed and/or set aside and declared to be of no effect
  3. 3.This suit (Nakuru ELC No. 319 of 2015) declared withdrawn with costs awarded to the defendant
  4. 4.Plaintiff to pay the costs of both suits to the defendant before filing any fresh suit
Jurisdiction invoked
Supervisory jurisdiction of the Environment and Land Court over subordinate courts

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, "Anthony Ntutu v Saiyalel Ololoso [2016] KEELC 649 (KLR)", Case Analysis (2016). Nakuru ELC No. 319 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/649/eng@2016-07-13

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