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ELCOtherELC Case No. 3 of 2015 (application dated 3rd April 2018)· [2018] KEELC 1101 (KLR)

Two Thirds Investment Limited & 9 others v Katana Said Kalama & 3 others [2018] KEELC 1101 (KLR)

Environment and Land Court
2 November 2018
673 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Mombasa court refused to stop a duplicate land case, choosing instead to combine both lawsuits into one hearing over the same plot.

What this practically means

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Executive summary

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The defendants/applicants in ELC Case No. 3 of 2015, supported by the affidavit of their advocate William Kenga, moved the court under sections 1A, 1B, 3A and 6 of the Civil Procedure Act seeking a stay of the present suit pending hearing and determination of ELC Case No. 232 of 2014 (O.S), Katana Said Kalama and 40 others vs Two Thirds Investments Limited, in which they seek adverse possession over plot No. 390/II/MN, CR No. 1222. The application was opposed by the plaintiffs through their advocate Kioko Maundu, who deposed that the parties and subject matters of the two suits differ and that the application was aimed at slowing the case. The court framed the test under section 6 as whether the subject matter and parties of the two suits are the same. It found from the plaintiffs' own pleadings, including paragraph 4 of the plaint and the admission in paragraph 14 of the existence of the earlier suit over the mother title, that both suits concern plot MN/II/390; the plaintiffs' failure to annex titles for the separately listed plots reinforced this. The defendants are named as applicants in the earlier suit, and the joinder of additional plaintiffs does not defeat section 6. However, because some respondents were not parties to the earlier originating summons and its mode of commencement would not accommodate their claims, the court declined a stay and instead consolidated the two files, with the 2014 suit as the lead file and the 2015 pleadings treated as a defence and counter-claim. Costs of the application were awarded to the defendants/applicants.

Key legal issues

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01

Whether the subject matter of the two suits is the same

Holding

The subject matter is the same because the plaintiffs' own pleadings and documents confirm both suits relate to plot MN/II/390 (CR No. 1222), and the plaintiffs did not annex titles for the separate plot numbers listed in their plaint.

Reasoning

The court examined paragraph 4 of the plaint, which lists plot numbers derived from original Number CR 1222, MN/II/390, and paragraph 14, which admits the existence of the earlier suit over the mother title. The replying affidavit failed to annex copies of titles for the listed plots, so the court was persuaded that the subject matter in both suits is the same parcel of land.

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02

Whether the parties to the two suits are the same for purposes of section 6

Holding

The defendants in the present suit are named as applicants in the earlier suit, and the addition of more plaintiffs does not change the purpose of section 6.

Reasoning

The court held that adding extra plaintiffs to the later suit does not defeat section 6; instead the law should enable all parties with a stake in the property to participate in one suit to avoid duplicity. However, consolidation rather than stay was ordered because some respondents could not conveniently pursue their claim in the earlier originating summons.

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03

Whether a stay of the present suit should issue

Holding

A stay was refused; consolidation was ordered instead.

Reasoning

Because some respondents were not included in the earlier originating summons and, by virtue of the mode in which that suit was commenced, would not have a better way of presenting their claim there, the court declined a stay. It consolidated the two files, making the 2014 suit the lead file and treating the 2015 pleadings as a defence and counter-claim to the adverse possession claim.

p. 2

Legal principles established

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  • Section 6 of the Civil Procedure Act is infringed where the subject matter and parties of the later suit are the same as those of a suit filed earlier
  • Rather than staying a later suit, the court may consolidate the files so that all parties with a stake in the property participate in one suit and duplicity is avoided

Court orders

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  1. 1.The two files are consolidated, with ELC Case No. 232 of 2014 as the lead file
  2. 2.The pleadings in ELC Case No. 3 of 2015 shall be treated as a defence and counter-claim to the claim for adverse possession
  3. 3.The defendants/applicants are awarded costs of their application

Authorities

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Legislation

  • Civil Procedure Actsection 1A
  • Civil Procedure Actsection 1B
  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 6
Jurisdiction invoked
Sections 1A, 1B, 3A & 6 of the Civil Procedure 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, "Two Thirds Investment Limited & 9 others v Katana Said Kalama & 3 others [2018] KEELC 1101 (KLR)", Case Analysis (2018). ELC Case No. 3 of 2015 (application dated 3rd April 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1101/eng@2018-11-02

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