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ELCPartially AllowedNotice of Motion dated 1st August 2017 (suit file number not stated in judgment)· [2018] KEELC 2769 (KLR)

Bernard Gachie Kamau v Livingstone W. Kinyanjui & 23 others [2018] KEELC 2769 (KLR)

Environment and Land Court
19 June 2018
2,125 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 1st August 2017 by the 2nd–17th Defendants in a land dispute before the Environment and Land Court at Thika, seeking a stay of proceedings pending hearing and determination of CMCC No.879 of 2010 at Thika Law Courts. The Applicants, supported by an affidavit of the 2nd Defendant, Fredrick Nganga Thuo, contended that the Thika suit involved the same parties, the same suit properties being subdivisions of Ruiru/Kiu/Block 2/3758, and the same prayers, and that allowing both suits to proceed would risk conflicting decisions and amount to abuse of process. The Thika suit was at an advanced stage, with the Applicants' case there closed and a further defence hearing scheduled. The Plaintiff, Benard Gachie Kamau, opposed the application, arguing that the parties and issues differed - his suit being premised on fraud and illegality while the Thika suit was premised on trespass - and proposed instead that the two suits be consolidated for a holistic hearing. The Court, applying Sections 1A, 1B, 3A and especially Section 6 of the Civil Procedure Act, found that the matter in issue (Ruiru/Kiu Block 2/3758) was directly and substantially in issue in the previously instituted Thika suit between parties litigating under the same title. Applying Daniel Otieno Awour v Hardware Trading Stars Ltd, it held the discretion to stay had to be exercised judicially. Consolidation was refused as it would delay the advanced Thika suit contrary to the overriding objective. The application was allowed in terms of prayer 1, with costs in the cause.

Key legal issues

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01

Whether the matter in issue in the present suit is directly and substantially in issue in a previously instituted suit between the same parties (Section 6, Civil Procedure Act)

Holding

Yes; both suits concern Ruiru/Kiu Block 2/3758, the parties are almost the same and litigate under the same title, and the prayers sought are the same, so a stay under Section 6 is warranted

Reasoning

The court compared the Plaint in both suits and found that the bone of contention is Ruiru/Kiu Block 2/3758; the Plaintiff in this suit seeks a declaration of bona fide proprietorship and cancellation of resultant titles, which are the same prayers as in CMCC No.879 of 2010, a previously instituted suit. The parties are almost the same and litigate under the same title, so allowing parallel hearings risks conflicting decisions by courts of concurrent jurisdiction.

p. 3
02

Whether consolidation of the two suits would better serve justice than a stay

Holding

No; consolidation would delay the advanced Thika suit contrary to the overriding objective

Reasoning

CMCC No.879 of 2010 is an old matter at an advanced stage, with the Plaintiffs' case closed and further defence hearing scheduled. Consolidation would delay its finalisation, contrary to Sections 1A and 1B. The issues raised by the Plaintiff can be adequately dealt with in the Thika suit, so the appropriate remedy is a stay of this suit.

p. 3

Legal principles established

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  • Under Section 6 of the Civil Procedure Act, a court shall not proceed with the trial of a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties or parties litigating under the same title, pending in a court with jurisdiction to grant the relief claimed
  • The power to stay proceedings in the face of parallel proceedings is a judicial discretion to be exercised judicially, rationally and in the interests of justice

Court orders

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  1. 1.Stay of this suit and/or proceedings until CMCC No.879 of 2010 at Thika Law Courts is heard and determined
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure Act, Cap 21 Laws of KenyaSection 1A
  • Civil Procedure Act, Cap 21 Laws of KenyaSection 1B
  • Civil Procedure Act, Cap 21 Laws of KenyaSection 3A
  • Civil Procedure Act, Cap 21 Laws of KenyaSection 6

Cases cited (1)

  • Daniel Otieno Awour Vs Hardware Trading Stars Ltd & Ano.
    (2010) eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21 Laws of Kenya; Section 6 thereof (stay of parallel suits)

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, "Bernard Gachie Kamau v Livingstone W. Kinyanjui & 23 others [2018] KEELC 2769 (KLR)", Case Analysis (2018). Notice of Motion dated 1st August 2017 (suit file number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2769/eng@2018-06-19

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