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ELCStruck OutApplication dated 7th November 2016· [2017] KEELC 2990 (KLR)

Kabibi Muthami Mumo v Joseph Muli Mwanzui [2017] KEELC 2990 (KLR)

Environment and Land Court
5 May 2017
926 words in judgment
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The bottom line

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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

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Executive summary

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The Applicant, Kabibi Muthami Mumo, moved the Environment and Land Court at Malindi by an application dated 7th November 2016 under Sections 1A and 3A of the Environment and Land Court Act seeking the transfer of Mombasa Provincial Land Appeals Committee Case No. 407 of 2006 to the court for hearing and determination. The appeal had been lodged by her deceased husband against an award of the Kilifi Land Disputes Tribunal at Kaloleni, which had been adopted as Land Award Case No. 2 of 2006 by the Resident Magistrate's Court at Kaloleni on 11th April 2006. The Land Disputes Tribunal Act was repealed upon the enactment of the Environment and Land Court Act before the appeal could be determined, leaving the matter pending. The Respondent opposed the application, contending it was brought too late, was an abuse of process, and was sub judice because the Applicant had already filed Kaloleni Principal Magistrates Civil Suit No. 4 of 2014 over the same parcel of land, in which she had testified as Plaintiff. The court held that pending matters from the disbanded tribunals falling within the new Act's purview ought to be dealt with under the law, but the sub-judice rule in Section 6 of the Civil Procedure Act barred the application since the same subject matter was in issue between the same parties in the Kaloleni suit. Applying Angote J.'s observation that a party wishing to file a similar suit must first withdraw the existing one, the court found the application abusive. The application dated 7th November 2016 was struck out with costs to the Respondent.

Key legal issues

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01

Sub judice rule under Section 6 of the Civil Procedure Act

Holding

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.

Reasoning

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.

p. 2
02

Abuse of the court process and the court's inherent jurisdiction

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application dated 7th November 2016 is struck out
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Environment and Land Court ActSections 1A, 3A
  • Land Disputes Tribunal ActRepealed (Act No. 18 of 1990)
  • Civil Procedure ActSection 6

Cases cited (1)

  • Republic -vs- District Alcoholic Drinks Regulation Committee & 4 Others ex-parte Detlef Heir & Another
    (2013) eKLR
Jurisdiction invoked
Sections 1A and 3A of the Environment and Land Court Act

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, "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.