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ELCDismissedNotice of Motion dated 9th May 2017 in Embu ELC Suit (arising from Title No. Nthawa/Siakago/721)· [2017] KEELC 2071 (KLR)

Teresina Muthoni Ngari v Mati Mugo [2017] KEELC 2071 (KLR)

Environment and Land Court
26 July 2017
800 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Embu Environment and Land Court refused to pause a parallel Siakago case, confirming Kenyan courts will not easily stay proceedings without proof of real prejudice.

What this practically means

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Executive summary

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The Plaintiff moved the Environment and Land Court at Embu by notice of motion dated 9th May 2017 seeking a stay of proceedings in Siakago PMCC No. 61 of 2016 pending hearing of the instant suit, on grounds that both suits involved the same parties and subject matter, Title No. Nthawa/Siakago/721, and that the instant suit's outcome would determine the direction of the other. The application was supported by an affidavit of the Plaintiff's advocate, Mr Kamunyori, exhibiting the Siakago plaint. The Defendant opposed by replying affidavit, stating he was the registered proprietor, that the Siakago suit arose from a caution the Plaintiff placed on the title in 2015, and that the application was vexatious and an abuse of process. The Defendant did not attend the hearing and the application was prosecuted unopposed. The court identified the primary issue as whether the Plaintiff had made out a case for stay. Comparing the two suits, the court found the Siakago suit sought only removal of the caution and costs, which would not affect the adverse possession claim before the ELC regardless of outcome. No contention was made that the Siakago court lacked jurisdiction, and no substantial loss or prejudice was demonstrated. The court noted the Siakago suit was part-heard and should proceed expeditiously, observing that the Plaintiff could seek preservation orders if apprehensive of dealings with the property. Applying Global Tours & Travels Ltd, the court dismissed the motion with costs in the cause.

Key legal issues

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01

Whether the criteria for stay of proceedings were met

Holding

The criteria were not met; the parallel Siakago suit for removal of a caution could not affect the adverse possession claim before the ELC

Reasoning

The court compared the two suits: the Siakago suit sought removal of a caution; the instant suit sought adverse possession. Whether the caution is removed or not, the adverse possession claim would proceed unaffected. No contention was made that the Siakago court lacked jurisdiction. The Plaintiff neither demonstrated substantial loss nor sought preservation orders if apprehensive of dealing with the property. Staying the part-heard suit would curtail access to justice under Article 48.

p. 2

Legal principles established

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  • A stay of proceedings will not be granted where the outcome of the suit sought to be stayed will not render the pending suit nugatory, and the applicant has not demonstrated substantial loss or prejudice
  • Courts should be slow to curtail the constitutional right of access to justice and suits once filed should be heard and concluded expeditiously

Court orders

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  1. 1.The Plaintiff's notice of motion dated 9th May 2017 is dismissed
  2. 2.Costs of the application shall be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 48

Cases cited (1)

  • Global Tours & Travels Ltd, NBI Winding up Cause No. 43/2000
Jurisdiction invoked
Inherent jurisdiction to stay proceedings; Constitution of Kenya, Article 48

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, "Teresina Muthoni Ngari v Mati Mugo [2017] KEELC 2071 (KLR)", Case Analysis (2017). Notice of Motion dated 9th May 2017 in Embu ELC Suit (arising from Title No. Nthawa/Siakago/721). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2071/eng@2017-07-26

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