Kabibi Muthami Mumo v Joseph Muli Mwanzui [2017] KEELC 2990 (KLR)
The bottom line
#The Environment and Land Court struck out an attempt to revive an old land appeal because the same dispute was already before another Kenyan court.
What this practically means
#Executive summary
#Key legal issues
#Sub judice rule under Section 6 of the Civil Procedure Act
The application could not be entertained because the same parcel of land was directly and substantially in issue in a previously instituted suit between the same parties, being Kaloleni Principal Magistrates Civil Suit No. 4 of 2014, in which the Applicant had already testified.
The court reproduced Section 6 of the Civil Procedure Act and explained that the sub-judice rule prevents abuse of process where parallel proceedings are heard before courts with concurrent jurisdiction. On the Replying Affidavit, the parties to the Kaloleni suit were the same as in this application, and the subject matter was the same parcel. The Applicant did not deny the existence of the suit or that she had already testified. Transferring the appeal to this court would therefore create parallel proceedings.
Abuse of the court process and the court's inherent jurisdiction
Transferring the Provincial Land Appeals Committee case while the Kaloleni suit over the same land was pending would constitute an abuse of process, which the court has inherent jurisdiction to prevent by striking out the application.
Relying on Angote J.'s decision in Republic v District Alcoholic Drinks Regulation Committee ex-parte Detlef Heir, the court held that abuse of process includes improperly using judicial process to the irritation, harassment and annoyance of an opponent and interfering with the administration of justice. Since the Applicant sought to relitigate the same dispute already pending in Kaloleni, the application was abusive and fell to be struck out with costs.
Legal principles established
#- Matters pending before the Land Disputes Tribunals and Provincial Appeals Committees when the Land Disputes Tribunal Act was repealed and which fall within the purview of the Environment and Land Court Act ought to be dealt with as provided under the law.
- A party who wishes to file a suit similar to an existing suit must first withdraw the first suit; parallel proceedings on the same subject matter between the same parties amount to an abuse of court process under the sub-judice rule in Section 6 of the Civil Procedure Act.
Court orders
#- 1.The application dated 7th November 2016 is struck out
- 2.Costs of the application to the Respondent
- Jurisdiction invoked
- Sections 1A and 3A of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kabibi Muthami Mumo v Joseph Muli Mwanzui [2017] KEELC 2990 (KLR)", Case Analysis (2017). Application dated 7th November 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2990/eng@2017-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.