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ELCDismissedNot stated in the judgment (Chuka Environment and Land Court suit)· [2017] KEELC 1525 (KLR)

Mercy Kawira Bundi v Amos Mbae Kanampiu & another [2017] KEELC 1525 (KLR)

Environment and Land Court
11 October 2017
1,267 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer lost her suit because she should have appealed an earlier succession court decision, not filed a fresh case.

What this practically means

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Executive summary

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This was a ruling on a Preliminary Objection dated 7th September 2017 raised by the 2nd defendant against the plaintiff's entire suit. The plaintiff, claiming to be an innocent purchaser for value, sought an order compelling the 2nd defendant (administrator of the estate of Kanampiu Kabiru) to revert title No. Mwimbi/Chogoria/4243, excised from parcel Mwimbi/Chogoria/2400, or to compensate her for developments, together with damages, costs and interest. The 2nd defendant objected on three grounds: that the subject matter fell within the probate and administration jurisdiction of the High Court under Article 162(2) of the Constitution; that the suit was res judicata under Section 7 of the Civil Procedure Act given the decision in Chuka Succession Cause No. 26 of 2016 delivered on 17th May 2017; and that the suit was an abuse of process warranting striking out under Order 2 rule 15(d) of the Civil Procedure Rules, 2010, particularly as Nyeri Court of Appeal No. 97 of 2017 was pending. On 11th October 2017, the court found an inexorable nexus between the plaintiff's prayers and the orders in the succession cause, which had cancelled title No. 4243 among others. The court held it could not sit as an appellate court over a decision of a court of similar horizontal and concurrent jurisdiction, characterised the suit as forum shopping, and concluded it lacked jurisdiction. The suit was dismissed with no costs awarded to the defendants, the court exercising its discretion on costs. Leave was effectively noted that the plaintiff could pursue damages against those she perceived responsible, but not in the suit as framed.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over claims touching titles cancelled in a succession cause

Holding

The court lacked jurisdiction to entertain the plaintiff's claim for restoration of title No. Mwimbi/Chogoria/4243 as it had been cancelled by orders in Chuka Succession Cause No. 26 of 2016, a decision of a court of concurrent jurisdiction; any challenge lies on appeal, not by fresh suit

Reasoning

The court compared the plaint's prayers with the orders issued in the succession cause and found an inexorable nexus, particularly on the prayer for reversion of title No. 4243. Since that title had been cancelled in the succession proceedings, entertaining the claim would convert the ELC into an appellate forum over a judge of the same horizontal jurisdiction, which it lacked jurisdiction to do. The pending appeal in Nyeri reinforced the conclusion.

p. 3
02

Res judicata and abuse of process

Holding

The Preliminary Objection was found meritorious: the same issues between the same parties had been determined in Chuka Succession Cause No. 26 of 2016 and the suit constituted forum shopping

Reasoning

The 2nd defendant demonstrated that the plaintiff was party to the succession cause in which a final decision had been rendered on 17th May 2017, and to a pending appeal (Nyeri CA No. 97 of 2017). Consolidating a damages claim with a restoration claim did not save it; the court characterised the fresh suit as forum shopping and abuse of process, warranting dismissal.

p. 3

Legal principles established

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  • A court of first instance of concurrent jurisdiction cannot entertain a claim that in substance seeks to unsettle orders made by a court of the same horizontal jurisdiction, particularly where an appeal from those orders is pending.

Court orders

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  1. 1.The suit is dismissed
  2. 2.No costs awarded to the defendants

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)
  • Civil Procedure ActSection 7
  • Civil Procedure Rules, 2010Order 2 rule 15(d)

Cases cited (1)

  • Owners of the Motor Vessel "Lilian S" [1988] KLR 1
    [1988] KLR 1
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya (Environment and Land Court jurisdiction) raised in the Preliminary Objection

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, "Mercy Kawira Bundi v Amos Mbae Kanampiu & another [2017] KEELC 1525 (KLR)", Case Analysis (2017). Not stated in the judgment (Chuka Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1525/eng@2017-10-11

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