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ELCDismissedBusia ELC (suit number not stated in judgment)· [2018] KEELC 1114 (KLR)

Esther Wangoi v Molyn Credit Limited [2018] KEELC 1114 (KLR)

Environment and Land Court
30 October 2018
AKA. K. Kaniaru
640 words in judgment
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The bottom line

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A Kenyan court refused to strike out a land case, choosing instead to combine both competing lawsuits into one hearing.

What this practically means

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Executive summary

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The defendant, Molyn Credit Limited, filed a Notice of Motion dated 3/7/2017 under Order 2 Rule 15(1)(d) of the Civil Procedure Rules and Section 6 of the Civil Procedure Act seeking to strike out the plaintiff Esther Wangoi Mwangi's suit, or alternatively to stay it, on the ground that the parties and the subject matter - land parcel BUKHAYO/MUNDIKA/285 - were already the subject of the defendant's earlier suit, Busia ELC No. 54 of 2017, which remained unheard and undetermined. The defendant argued the suit was sub judice, citing Thiba M.N. Hydro Co. Ltd v Josphat Karu Ndwiga and Njenga Karume v Kungu Gatabaki. The plaintiff responded that she was unaware of the earlier suit when she filed this one and proposed consolidation. The application was canvassed by written submissions. The court held that striking out the suit was not in the best interest of justice, as it would wrongly imply the plaintiff's case was hopeless, and found nothing to show the plaintiff knew of the earlier suit when filing. Finding consolidation plausible, the court ordered the two suits consolidated, with the earlier ELC No. 54 of 2017 as the lead suit and this suit treated as a counter-claim. The application was dismissed with costs in the cause. Judgment was delivered at Busia on 30 October 2018 by A. K. Kaniaru, Judge.

Key legal issues

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Whether the suit should be struck out or stayed under Order 2 Rule 15(1)(d) and Section 6 of the Civil Procedure Act as res sub judice an earlier suit between the same parties over the same land

Holding

The application for striking out or stay was dismissed; the two suits were consolidated with the earlier suit (ELC No. 54 of 2017) as the lead suit and this suit treated as a counter-claim.

Reasoning

The court found that striking out would wrongly suggest the plaintiff's case was hopeless or weak, whereas it appeared deserving of judicial scrutiny on its face. The plaintiff had filed this suit without knowledge of the earlier, undetermined suit over the same parcel, BUKHAYO/MUNDIKA/285. Consolidation, suggested by the plaintiff, best served the interest of justice and avoided duplicative proceedings.

p. 1

Legal principles established

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  • Striking out a suit filed over the same subject matter as an earlier suit is not necessarily in the best interest of justice; consolidation is appropriate where the later plaintiff was unaware of the earlier suit when filing.

Court orders

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  1. 1.The two matters, this suit and Busia ELC No. 54 of 2017, are consolidated and to be handled together
  2. 2.Busia ELC No. 54 of 2017 is taken as the lead suit and this suit is treated as a counter-claim
  3. 3.The defendant's Notice of Motion dated 3/7/2017 is dismissed
  4. 4.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(1)(d)
  • Civil Procedure Act (Cap 21 Laws of Kenya)Section 6

Cases cited (2)

  • Thiba M.N. Hydro Co. Ltd v Josphat Karu Ndwiga
    [2013] eKLR
  • Njenga Karume & 2 Others v Kungu Gatabaki & Another
    [2015] eKLR
Jurisdiction invoked
Order 2 Rule 15(1)(d) of the Civil Procedure Rules and Section 6 of the Civil Procedure Act (Cap 21, Laws of Kenya)

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, "Esther Wangoi v Molyn Credit Limited [2018] KEELC 1114 (KLR)", Case Analysis (2018). Busia ELC (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1114/eng@2018-10-30

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