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ELCDismissedNot stated in judgment (related: Meru HCC Petition No. 14 of 2012)· [2017] KEELC 3102 (KLR)

Sisto Maranguria Migwi & another v District Land Officer & another [2017] KEELC 3102 (KLR)

High Court of Kenya
15 March 2017
PNP. M. Njoroge
508 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Chuka dismissed a lawsuit for being a duplicate of a pending case, warning against filing parallel suits in Kenya.

What this practically means

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Executive summary

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The defendants filed a preliminary objection contending that the suit offended section 12(1) of Cap 40 (requiring the Attorney General to be sued on behalf of Government officers) and section 7 of Cap 21, and that it was res judicata Meru HCC Petition No. 14 of 2012, which was pending before the same court. The plaintiffs relied on Article 159(2)(d) of the Constitution, urging the court to eschew procedural technicalities, and argued that misjoinder cannot defeat a suit, while denying that the suit was res judicata and invoking Mukisa Biscuit on the requirement that a preliminary objection raise pure points of law. Justice P. M. Njoroge accepted that the Attorney General should have been sued, following Johnson Kobia M'Iproi v Kenya Revenue Authority. Although the court expressly declined to find the suit res judicata, it noted that the parties and issues were essentially identical to the pending petition, with only the County Government of Tharaka Nithi added, and that plaintiff's counsel had conceded on 19 April 2016 that he was considering withdrawing the suit. The court held that such duplicate filing amounts to forum shopping, a bad practice to be deprecated, and that parallel legal processes cannot proceed simultaneously. The suit was dismissed with costs to the respondents on 15 March 2017.

Key legal issues

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01

Whether the suit was improperly constituted for failure to sue the Attorney General

Holding

Yes - Government officers should be sued through the Attorney General under Cap 40

Reasoning

The court accepted the respondents' submission that Cap 40 requires the Attorney General to be sued on behalf of Government officers, adopting the reasoning in Johnson Kobia M'Iproi v Kenya Revenue Authority. The plaintiffs' invocation of Article 159(2)(d) and misjoinder arguments were found not clearly brought out.

p. 2
02

Whether the suit was res judicata Petition No. 14 of 2012

Holding

The suit was not strictly res judicata, but amounted to impermissible forum shopping

Reasoning

The court found the parties and issues essentially the same as in the pending Meru petition; adding the County Government of Tharaka Nithi did not alter this. The plaintiff's counsel had earlier conceded on 19.4.2016 that the same matter was pending, and a party is bound by such pronouncements.

p. 2

Legal principles established

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  • Filing a second suit over the same issues between essentially the same parties, merely adding one or two parties, is forum shopping which must be deprecated; the proper course is to enjoin new parties to the pending suit
  • Parallel legal processes over the same subject matter cannot proceed simultaneously
  • A party is bound by pleadings and pronouncements made in court

Court orders

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  1. 1.This suit is dismissed
  2. 2.Costs are awarded to the respondents

Authorities

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Legislation

  • Laws of Kenya Cap 40section 12(1)
  • Laws of Kenya Cap 21section 7
  • Constitution of Kenya 2010Article 159(2)(d)

Cases cited (2)

  • Johnson Kobia M'Iproi versus Kenya Revenue Authority & Another
    [2008] eKLR
  • Mukisa Biscuit Manufacturing Co Ltd versus West End Distributors Ltd
    (1969) EA 696
Jurisdiction invoked
First-instance civil suit; objection grounded on section 12(1) Cap 40 and section 7 Cap 21 (Limitation of Actions 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, "Sisto Maranguria Migwi & another v District Land Officer & another [2017] KEELC 3102 (KLR)", Case Analysis (2017). Not stated in judgment (related: Meru HCC Petition No. 14 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3102/eng@2017-03-15

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