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ELCDismissedNotice of Motion dated 18th October 2016 in ELC suit filed 25th March 2008· [2017] KEELC 1685 (KLR)

Marion Gitau & 6 others v Attorney General for Commissioner of Lands & another [2017] KEELC 1685 (KLR)

Environment and Land Court
15 September 2017
MGMary M. Gitumbi
556 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to pause a long-running land case because the plaintiffs were pursuing the same dispute in two forums at once.

What this practically means

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Executive summary

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The Plaintiffs/Applicants, by a Notice of Motion dated 18th October 2016, sought a stay of this suit pending the hearing and determination of a Petition they had lodged on 11th July 2016 before the National Land Commission Tribunal concerning the alleged unlawful grabbing of their land, L.R. No. 209/14309. The application was supported by an affidavit of the 1st Plaintiff, Marion Gitau. The 2nd Defendant, through the replying affidavit of its trustee Fridah Shiroya, opposed the application, contending that the issues in the Petition were identical to those before the court, that the suit was part heard with the Plaintiffs' first witness stood down, and that the Plaintiffs had filed the Petition unilaterally and were playing lottery with the court. The court identified the sole issue as whether to stay the suit pending the Tribunal proceedings. It observed that the jurisdiction of both the court and the National Land Commission Tribunal was not disputed, but that the suit, filed on 25th March 2008 and part heard since 14th November 2013, was still at the evidence-in-chief of the Plaintiffs' first witness. By seeking a stay, the Plaintiffs were pursuing redress in two fora simultaneously and could revert to the court if unsuccessful before the Tribunal. The court held this was undesirable and a gross abuse of process, and that the Plaintiffs had to elect one forum and pursue it to the end. The court declined the stay, dismissed the application, and ordered costs in the cause.

Key legal issues

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01

Whether to stay a part-heard suit pending determination of a Petition before the National Land Commission Tribunal raising the same issues

Holding

The application for stay was declined and dismissed

Reasoning

The court noted that both forums had jurisdiction and none was disputed. However, the suit, filed in 2008 and part heard since 2013, concerned the very same issues the plaintiffs lodged before the National Land Commission Tribunal. Staying the part-heard suit would allow the plaintiffs to pursue two fora sequentially, reverting to this court if they failed before the Tribunal. The court characterized this as forum shopping, undesirable and a gross abuse of process, and required the plaintiffs to elect one forum.

p. 2

Legal principles established

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  • A litigant who initiates parallel proceedings in two fora over the same issues must elect one forum and pursue it to the end; a court will not stay a part-heard suit to permit forum shopping, which amounts to abuse of process.

Court orders

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  1. 1.Application for stay of proceedings dismissed
  2. 2.Costs shall be in the cause
Jurisdiction invoked
Undisputed jurisdiction of the Environment and Land Court to hear the suit

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, "Marion Gitau & 6 others v Attorney General for Commissioner of Lands & another [2017] KEELC 1685 (KLR)", Case Analysis (2017). Notice of Motion dated 18th October 2016 in ELC suit filed 25th March 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1685/eng@2017-09-15

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